Tamil Nadu Kerosene Dealers Assn., Rep. by Its President A. Kannabiran Vs. the Government of Tamil Nadu, Rep. by Its Secretary and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/953970
CourtChennai High Court
Decided OnNov-01-2012
Case NumberW.P. No. 22660 of 2011 & M.P. Nos. 2 & 3 of 2011
JudgeK.K. SASIDHARAN
AppellantTamil Nadu Kerosene Dealers Assn., Rep. by Its President A. Kannabiran
RespondentThe Government of Tamil Nadu, Rep. by Its Secretary and Others
Advocates:For the Petitioner: K. Doraisamy, Senior counsel for Muthumani Doraisami, Advocate. For the Respondents: R1 & R2, K. Subramanian, Special Govt. Pleader, R3, Anand, Abdul & Vinoth Associates, Advocates.
Excerpt:
constitution of india - article 226 - essential commodities act - association of kerosene dealers -essential commodities-leakage allowance-re-fixing the handling loss -violation of principles of natural justice---petitioner ,an association of kerosene dealers challenging the impugned order of government who reduced the leakage allowance from 1% to 0.25%-government by g.o.had earlier reduced leakage allowance from 1% to 0.25%which was challenged by means of a batch of writ petitions before learned single judge who ordered a committee to be constituted by government to reconsider the matter afresh-the committee fixed leakage allowance to 0.25% -hence this writ petition (prayer: petition filed under article 226 of the constitution of india praying to issue a writ of certiorari calling for the records of the respondents relating to the order of the 1st respondent in g.o.(rt) no.75, co-operation food and consumer protection (c2) department dated 08.09.2011 and the communication of the 2nd respondent in rc.lr.no.k4/22193/2010 dated 23.9.2011 and quash the same.) 1. this writ petition is directed against the order in g.o.(rt) no.75, co-operation, food and consumer protection (c2) department dated 8 september 2011 on the file of the first respondent and the related communication dated 23 september 2011 issued by the second respondent reducing the handling loss of petroleum products from 1% to 0.25% and the proposal to implement the decision with effect from 1 october, 2011. facts in nutshell: 2. the petitioner is an association of kerosene dealers. the government of tamil nadu, in exercise of the powers conferred under the provisions of the essential commodities act, issued an order in g.o.ms.no.442, food and co-operation department dated 5 september 1989 fixing the handling/leakage loss for kerosene at 1%. while so, the first respondent issued an order in g.o.ms.no.96 dated 24 may 2000 reducing the handling loss from 1% to 0.25%. the said government order was challenged by the petitioner in w.p.no.6575 of 2001 etc. batch. similarly, others who were affected by the said order also filed writ petitions before this court. the writ petitions were taken up together and disposed of by a common order dated 20 july 2010. the learned single judge after quashing the impugned government order dated 24 may 2000 directed the committee constituted by the government in g.o.ms.no.285, co-operation, food and consumer protection department dated 18 december 1998 to examine the question relating to the physical component of leakage allowance and to issue appropriate orders, fixing the handling loss for wholesale dealers. it was made clear that till such notification is issued after enquiry, the dealers would be entitled to leakage allowance at 1%. 3. the committee appointed by the government and referred to in the order passed by the learned single judge considered the matter afresh resulting in passing the impugned order in g.o.(rt) no.75, co-operation, food and consumer protection (c2) department dated 8 september 2011 reducing the leakage allowance from 1% to 0.25% virtually re-iterating the earlier government order. feeling aggrieved by the said decision, the association is before this court. 4. the first respondents filed a detailed counter affidavit supporting the impugned order and disputing the claim made by the petitioner. according to the first respondent, the state government fixed the storage and handling loss at 0.25% by modifying the earlier order in g.o.ms.no.383, food and co-operation department dated 7 may 1981. the said decision was taken due to reduction of financial leakage allowance from rs.7.20 per kl to rs.5.50 per kl with effect from 6 november 1997 by the government of india. the leakage allowance of rs.5.50 per kl was only 0.25 per cent in relation to cost of one kilolitre o kerosene at that time. the public accounts committee objected to the rate of leakage allowance fixed by the state higher than the allowance allowed by the government of india. this resulted in modifying the rate. when the issue was taken up before the high court, the committee was directed to examine the matter afresh. accordingly the committee examined the matter with due opportunity to the tamil nadu petroleum dealers association. the committee took a conscious decision to reduce the leakage allowance from 1% to 0.25%. the decision was taken after giving reasonable opportunity to the association to submit its views. therefore, the decision is not liable to be quashed. 5. the third respondent filed a separate counter affidavit supporting the impugned order. according to the third respondent, the expert committee heard the views of all the members and submitted a detailed report recommending the reduction of handling loss from 1% to 0.25%. the government carefully considered the views expressed by the committee and ultimately, issued the impugned order re-fixing the handling loss. submissions: 6. the learned senior counsel for the petitioner made the following submissions: (i) the impugned order was passed in violation of the principles of natural justice. the petitioner, who represents the kerosene dealers was not made a member of the committee. (ii) the report prepared by the committee was not supplied to the petitioner before issuing the impugned government order. (iii) the handling loss was fixed by way of a statutory notification issued under the provisions of the essential commodities act. such a statutory notification cannot be amended by a government order. 7. the learned special government pleader submitted that the petitioners were represented by the tamil nadu kerosene dealers association. the composition of committee was known to the petitioner. the petitioner has not raised any objection with respect to the composition of committee. therefore, it is not open to the petitioner to challenge the composition at this point of time. the learned special government pleader further contended that there is no vested right to claim handling loss and it was merely a concession. it was fixed in line with the handling loss prescribed by the government of india with respect to petroleum products. therefore, the association cannot be heard to say that the handling loss was arbitrarily fixed. 8. the learned counsel for the third respondent raised a preliminary objection with regard to the maintainability of the writ petition. the learned counsel contended that it is not open to the association to file a writ petition inasmuch as there is no fundamental right to the association to invoke the jurisdiction of this court. according to the learned counsel, the learned judge permitted the existing committee to consider the matter and to submit a report so as to enable the government to take a decision. it is not open to the petitioner to challenge the composition of the committee after submitting report. the learned counsel justified the reduction of handling loss, as according to him, no statute mandates that handling loss should be given or it should be given at a particular rate. therefore, there is no merit in the contention raised by the petitioners. factual analysis: 9. the petitioner represents the wholesale and retail dealers in kerosene. kerosene is an essential commodity. the business in kerosene is governed by the provisions of the control orders framed under the essential commodities act. the government of tamil nadu in exercise of the powers conferred under sub-clause (b)(i) of clause 2 of the kerosene (fixation of ceiling prices) order 1970 issued a notification on 5 september 1980. the notification was primarily issued with an intention to fix the margin for the wholesale/retail dealers in kerosene. the notification permits handling loss at 1% of the cost of one kilo litre. it was only to compensate the dealer on account of leakage, handling loss was permitted. the handling loss is not a statutory requirement. the government was not bound to give handing loss to the dealers whether it be kerosene or petroleum. the petitioners enjoyed the benefits of the notification for a period of twenty years, till the rate was revised on 24 may 2000. 10. the government issued an order in g.o.ms.no.96, co-operation, food and consumer protection department, dated 24 may 2000, reducing the handling loss from 1% to 0.25%. the reduction was made in the light of the report submitted by a committee constituted by the government as per the order in g.o.ms.no.285, co-operation, food and consumer protection department, dated 18 december 1998. the government order dated 24 may 2010 was challenged by the tamil nadu kerosene dealers association before this court. the learned single judge considered all the writ petitions together and opined that there were no relevant materials before the committee to fix the storage and handling loss. the learned single judge quashed the impugned government order in g.o.ms.no.96, co-operation, food and consumer protection department dated 24 may 2000 and directed the committee constituted by the government earlier, to examine the question relating to the physical component of leakage allowance and submit a report to the government. the government was directed to take a decision in the light of the report of the committee. 11. the committee constituted by the government earlier, considered the issue once again in the light of the direction issued by the learned single judge on 20 july 2010 in w.p.no.6575 of 2001 etc. batch. the petroleum dealers association was a member of the said committee. the proceedings of the committee shows that the president of the petroleum dealers association wanted the committee to retain the transaction loss at 1%. 12. the impugned government order is challenged on the ground that the affected parties were not made members of the committee. there is no merit in the said contention for more than one reason. 13. the petitioner was also a party before the learned single judge in w.p.no.6575 of 2001 etc. batch. the writ petition filed by the very same writ petitioner was taken as a lead case. the learned single judge after hearing the petitioner directed the very same committee constituted by the government earlier in g.o.ms.no.285, co-operation, food and consumer protection department dated 18 december 1998 to examine the question regarding physical component of leakage allowance as per reference made in the said government order and submit a report. the learned judge has not directed the government to include the representative of the petitioner as a member of the committee. the composition of the committee was very much before the learned single judge. the petitioner has not made any attempt to include the representative of the association as a member of the committee. the direction was only to the existing committee to consider the issue once again. therefore, in the absence of a direction given by the learned single judge to include the representative of the petitioner as a member of the committee, it is too late on the part of the petitioner to take up a contention regarding the absence of the association in the committee and inability of the kerosene dealers to represent their case before the committee. therefore, i am not inclined to accept the first submission made by the learned senior counsel with regard to the composition of committee. 14. the next contention of the learned senior counsel relates to violation of the principles of natural justice. according to the learned senior counsel, before passing the impugned order, the petitioner was not given any opportunity. the said contention is also liable to be rejected. the learned single judge wanted the committee to consider the matter afresh and to submit a report to the government. the government was directed to take a decision one way or the other taking into account the report submitted by the committee. the petroleum dealers association was a member of the committee. the petroleum dealers association wanted the committee to sustain the earlier rate. when it is made out that the tamil nadu petroleum dealers association was a member of the committee and there was no direction given by the learned single judge to give an opportunity of hearing to the petitioner, there is no merit in the contention raised on behalf of the petitioner that the impugned order was passed in violation of the principles of natural justice. 15. the third contention relates to the un-sustainability of the order. according to the learned senior counsel, the government earlier fixed the handling loss at 1% by way of a statutory notification. it was revised by way of a subsequent government order. it is true that the earlier notification was issued by the government in exercise of the powers conferred under sub-clause (b)(i) of clause 2 of the kerosene (fixation of ceiling prices) order 1970. the essential commodities act and the control orders made under the said act does not contain a mandate to the government to give handling loss either to the petroleum or to the kerosene dealers. it was essentially a concession given to the dealers taking into account the possible leakage. the dealers now wanted the handling loss as a matter of right irrespective of the fact as to whether there was really a leakage. the attempt now is to collect handling loss notwithstanding the fact that at times there would be no leakage at all. though the earlier notification was issued by the government under the provisions of the control orders framed under the essential commodities act, it cannot be said that the said notification cannot be modified at a later point of time by issuing another government order. the challenge is mainly on the ground that the impugned government order does not contain a reference about the provisions of the essential commodities act. 16. the kerosene control orders were framed only by the state government. the order in g.o.(rt) no.75, co-operation, food and consumer protection (c2) department dated 8 september 2011 clearly indicates that it was issued by the government. merely because the impugned order does not contain any reference about the provisions of the kerosene control order or the essential commodities act. it cannot be said that the impugned order was issued under a different enactment. the failure to quote the authority on quoting a wrong provision would not nullify the order, unless it is demonstrated that the government have no authority at all to issue such an order. therefore, i do not find any merit in the contention regarding infirmity in passing the impugned order. 17. the concept of handling loss itself is a misnomer. the handling loss pre-supposes that leakage is bound to happen. it was only for the purpose to make good the loss of kerosene, such a provision was made. leakage would be caused during the process of downloading the kerosene supplied to fair price shops. the leakage would be very less in case the business is transacted during the day time without any chance for variation in terms of temperature. 18. the reduction in handling loss was made primarily on account of the loss fixed by the government of india with respect to petroleum products. kerosene is termed as class “b” petroleum product. the government of india re-fixed the handling loss of petroleum products at 0.25% with effect from 1 august 2005. the report submitted by the committee clearly gives an indication that the diesel and kerosene belong to class “b” petroleum products with flash-point at 23 degrees centigrade and above but below 65 degrees centigrade. the explosive limits for diesel and kerosene is found to be the same and therefore, the committee wanted the handling loss allowed for diesel to be applied for kerosene also. 19. the handling loss is a concession given to the dealers on account of possible leakage. the kerosene dealers now wanted encashment of handling loss. when it is made out that the provision regarding handling loss itself was a concession given without any statutory requirement, it cannot be said that the authority is not entitled to revise the percentage of loss. the fact that the petitioner has been enjoying this concession for years together, would not go to show that they are entitled to retain the very same benefits for the years to come. this is really a business for the dealers and it is for them to decide as to whether they should continue to do business in kerosene or to surrender licence. there is no compulsion on the part of the petitioners to do the business in kerosene. 20. the order impugned in this writ petition was made in strict obedience to the order passed by the learned single judge in the earlier round of litigation. the petitioner is now making another attempt to enjoy the benefits of the earlier notification. the petitioner is not in a position to point out any serious procedural lapses in the matter of fixation of handling loss. 21. the petitioners now wanted this court to exercise judicial review in respect of a matter warranting expert opinion. the government constituted a committee comprising of experts in the field. the composition of the committee was made known to this court and it was only after full knowledge about the members of the committee and their experience in the field, the learned single judge directed the very same committee to examine the matter once again. the report submitted by the committee is not under challenge. in fact, the report was made pursuant to the order passed by the learned single judge. the government have only accepted the report submitted by the committee. the government have not made any modification to the report submitted by the committee. therefore, i do not find any merit in the contentions raised on behalf of the petitioner. 22. in the upshot, i dismiss the writ petition. consequently, the connected mps are closed. no costs.
Judgment:

(Prayer: Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorari calling for the records of the respondents relating to the order of the 1st respondent in G.O.(Rt) No.75, Co-operation Food and Consumer Protection (C2) Department dated 08.09.2011 and the Communication of the 2nd respondent in Rc.Lr.No.K4/22193/2010 dated 23.9.2011 and quash the same.)

1. This writ petition is directed against the order in G.O.(Rt) No.75, Co-operation, Food and Consumer Protection (C2) Department dated 8 September 2011 on the file of the first respondent and the related communication dated 23 September 2011 issued by the second respondent reducing the handling loss of petroleum products from 1% to 0.25% and the proposal to implement the decision with effect from 1 October, 2011.

Facts in nutshell:

2. The petitioner is an association of Kerosene dealers. The Government of Tamil Nadu, in exercise of the powers conferred under the provisions of the Essential Commodities Act, issued an order in G.O.Ms.No.442, Food and Co-operation Department dated 5 September 1989 fixing the handling/leakage loss for Kerosene at 1%. While so, the first respondent issued an order in G.O.Ms.No.96 dated 24 May 2000 reducing the handling loss from 1% to 0.25%. The said Government Order was challenged by the petitioner in W.P.No.6575 of 2001 etc. batch. Similarly, others who were affected by the said order also filed writ petitions before this court. The writ petitions were taken up together and disposed of by a common order dated 20 July 2010. The learned Single Judge after quashing the impugned Government Order dated 24 May 2000 directed the committee constituted by the Government in G.O.Ms.No.285, Co-operation, Food and Consumer Protection Department dated 18 December 1998 to examine the question relating to the physical component of leakage allowance and to issue appropriate orders, fixing the handling loss for wholesale dealers. It was made clear that till such notification is issued after enquiry, the dealers would be entitled to leakage allowance at 1%.

3. The Committee appointed by the Government and referred to in the order passed by the learned Single Judge considered the matter afresh resulting in passing the impugned order in G.O.(Rt) No.75, Co-operation, Food and Consumer Protection (C2) Department dated 8 September 2011 reducing the leakage allowance from 1% to 0.25% virtually re-iterating the earlier Government Order. Feeling aggrieved by the said decision, the association is before this Court.

4. The first respondents filed a detailed counter affidavit supporting the impugned order and disputing the claim made by the petitioner. According to the first respondent, the State Government fixed the storage and handling loss at 0.25% by modifying the earlier order in G.O.Ms.No.383, Food and co-operation Department dated 7 May 1981. The said decision was taken due to reduction of Financial leakage allowance from Rs.7.20 per KL to Rs.5.50 per KL with effect from 6 November 1997 by the government of India. The leakage allowance of Rs.5.50 per KL was only 0.25 per cent in relation to cost of one kilolitre o kerosene at that time. The Public Accounts Committee objected to the rate of leakage allowance fixed by the State higher than the allowance allowed by the Government of India. This resulted in modifying the rate. When the issue was taken up before the High Court, the Committee was directed to examine the matter afresh. Accordingly the Committee examined the matter with due opportunity to the Tamil Nadu Petroleum Dealers Association. The Committee took a conscious decision to reduce the leakage allowance from 1% to 0.25%. The decision was taken after giving reasonable opportunity to the Association to submit its views. Therefore, the decision is not liable to be quashed.

5. The third respondent filed a separate counter affidavit supporting the impugned order. According to the third respondent, the Expert Committee heard the views of all the members and submitted a detailed report recommending the reduction of handling loss from 1% to 0.25%. The Government carefully considered the views expressed by the Committee and ultimately, issued the impugned order re-fixing the handling loss.

Submissions:

6. The learned Senior Counsel for the petitioner made the following submissions:

(i) The impugned order was passed in violation of the principles of natural justice. The petitioner, who represents the Kerosene dealers was not made a member of the Committee.

(ii) The report prepared by the Committee was not supplied to the petitioner before issuing the impugned Government Order.

(iii) The handling loss was fixed by way of a statutory notification issued under the provisions of the Essential Commodities Act. Such a statutory notification cannot be amended by a Government Order.

7. The learned Special Government Pleader submitted that the petitioners were represented by the Tamil Nadu Kerosene Dealers Association. The composition of committee was known to the petitioner. The petitioner has not raised any objection with respect to the composition of Committee. Therefore, it is not open to the petitioner to challenge the composition at this point of time. The learned Special Government Pleader further contended that there is no vested right to claim handling loss and it was merely a concession. It was fixed in line with the handling loss prescribed by the Government of India with respect to petroleum products. Therefore, the association cannot be heard to say that the handling loss was arbitrarily fixed.

8. The learned counsel for the third respondent raised a preliminary objection with regard to the maintainability of the writ petition. The learned counsel contended that it is not open to the association to file a writ petition inasmuch as there is no fundamental right to the association to invoke the jurisdiction of this Court. According to the learned counsel, the learned Judge permitted the existing committee to consider the matter and to submit a report so as to enable the Government to take a decision. It is not open to the petitioner to challenge the composition of the committee after submitting report. The learned counsel justified the reduction of handling loss, as according to him, no statute mandates that handling loss should be given or it should be given at a particular rate. Therefore, there is no merit in the contention raised by the petitioners.

Factual Analysis:

9. The petitioner represents the wholesale and retail dealers in Kerosene. Kerosene is an essential commodity. The business in Kerosene is governed by the provisions of the Control orders framed under the Essential Commodities Act. The Government of Tamil Nadu in exercise of the powers conferred under sub-clause (b)(i) of clause 2 of the Kerosene (Fixation of Ceiling Prices) Order 1970 issued a notification on 5 September 1980. The notification was primarily issued with an intention to fix the margin for the wholesale/retail dealers in Kerosene. The notification permits handling loss at 1% of the cost of one Kilo litre. It was only to compensate the dealer on account of leakage, handling loss was permitted. The handling loss is not a statutory requirement. The Government was not bound to give handing loss to the dealers whether it be Kerosene or Petroleum. The petitioners enjoyed the benefits of the notification for a period of twenty years, till the rate was revised on 24 May 2000.

10. The Government issued an order in G.O.Ms.No.96, Co-operation, Food and Consumer Protection Department, dated 24 May 2000, reducing the handling loss from 1% to 0.25%. The reduction was made in the light of the report submitted by a committee constituted by the Government as per the order in G.O.Ms.No.285, Co-operation, Food and Consumer Protection Department, dated 18 December 1998. The Government Order dated 24 May 2010 was challenged by the Tamil Nadu Kerosene Dealers Association before this Court. The learned Single Judge considered all the writ petitions together and opined that there were no relevant materials before the Committee to fix the storage and handling loss. The learned Single Judge quashed the impugned Government Order in G.O.Ms.No.96, Co-operation, Food and Consumer Protection Department dated 24 May 2000 and directed the Committee constituted by the Government earlier, to examine the question relating to the physical component of leakage allowance and submit a report to the Government. The Government was directed to take a decision in the light of the report of the Committee.

11. The Committee constituted by the Government earlier, considered the issue once again in the light of the direction issued by the learned Single Judge on 20 July 2010 in W.P.No.6575 of 2001 etc. batch. The Petroleum Dealers Association was a member of the said committee. The proceedings of the Committee shows that the President of the Petroleum Dealers Association wanted the Committee to retain the transaction loss at 1%.

12. The impugned Government Order is challenged on the ground that the affected parties were not made members of the committee. There is no merit in the said contention for more than one reason.

13. The petitioner was also a party before the learned Single Judge in W.P.No.6575 of 2001 etc. batch. The writ petition filed by the very same writ petitioner was taken as a lead case. The learned Single Judge after hearing the petitioner directed the very same committee constituted by the Government earlier in G.O.Ms.No.285, Co-operation, Food and consumer Protection Department dated 18 December 1998 to examine the question regarding physical component of leakage allowance as per reference made in the said Government order and submit a report. The learned Judge has not directed the Government to include the representative of the petitioner as a member of the Committee. The composition of the Committee was very much before the learned Single Judge. The petitioner has not made any attempt to include the representative of the association as a Member of the committee. The direction was only to the existing committee to consider the issue once again. Therefore, in the absence of a direction given by the learned Single Judge to include the representative of the petitioner as a member of the Committee, it is too late on the part of the petitioner to take up a contention regarding the absence of the association in the committee and inability of the Kerosene dealers to represent their case before the committee. Therefore, I am not inclined to accept the first submission made by the learned Senior Counsel with regard to the composition of committee.

14. The next contention of the learned Senior Counsel relates to violation of the principles of natural justice. According to the learned Senior Counsel, before passing the impugned order, the petitioner was not given any opportunity. The said contention is also liable to be rejected. The learned Single Judge wanted the Committee to consider the matter afresh and to submit a report to the Government. The Government was directed to take a decision one way or the other taking into account the report submitted by the committee. The Petroleum Dealers Association was a member of the committee. The Petroleum Dealers association wanted the committee to sustain the earlier rate. When it is made out that the Tamil Nadu Petroleum Dealers Association was a member of the Committee and there was no direction given by the learned Single Judge to give an opportunity of hearing to the petitioner, there is no merit in the contention raised on behalf of the petitioner that the impugned order was passed in violation of the principles of natural justice.

15. The third contention relates to the un-sustainability of the order. According to the learned Senior counsel, the Government earlier fixed the handling loss at 1% by way of a statutory notification. It was revised by way of a subsequent Government Order. It is true that the earlier notification was issued by the Government in exercise of the powers conferred under sub-clause (b)(i) of clause 2 of the Kerosene (Fixation of Ceiling Prices) Order 1970. The Essential Commodities Act and the Control Orders made under the said Act does not contain a mandate to the Government to give handling loss either to the Petroleum or to the Kerosene dealers. It was essentially a concession given to the dealers taking into account the possible leakage. The dealers now wanted the handling loss as a matter of right irrespective of the fact as to whether there was really a leakage. The attempt now is to collect handling loss notwithstanding the fact that at times there would be no leakage at all. Though the earlier notification was issued by the Government under the provisions of the Control Orders framed under the Essential Commodities Act, it cannot be said that the said notification cannot be modified at a later point of time by issuing another Government Order. The challenge is mainly on the ground that the impugned Government Order does not contain a reference about the provisions of the Essential Commodities Act.

16. The Kerosene control Orders were framed only by the State Government. The order in G.O.(Rt) No.75, Co-operation, Food and Consumer Protection (C2) Department dated 8 September 2011 clearly indicates that it was issued by the Government. Merely because the impugned order does not contain any reference about the provisions of the Kerosene Control Order or the Essential Commodities Act. It cannot be said that the impugned order was issued under a different enactment. The failure to quote the authority on quoting a wrong provision would not nullify the order, unless it is demonstrated that the Government have no authority at all to issue such an order. Therefore, I do not find any merit in the contention regarding infirmity in passing the impugned order.

17. The concept of handling loss itself is a misnomer. The handling loss pre-supposes that leakage is bound to happen. It was only for the purpose to make good the loss of Kerosene, such a provision was made. Leakage would be caused during the process of downloading the kerosene supplied to fair price shops. The leakage would be very less in case the business is transacted during the day time without any chance for variation in terms of temperature.

18. The reduction in handling loss was made primarily on account of the loss fixed by the Government of India with respect to petroleum products. Kerosene is termed as Class “B” petroleum product. The Government of India re-fixed the handling loss of petroleum products at 0.25% with effect from 1 August 2005. The report submitted by the committee clearly gives an indication that the diesel and Kerosene belong to Class “B” Petroleum products with flash-point at 23 degrees centigrade and above but below 65 degrees centigrade. The Explosive Limits for diesel and Kerosene is found to be the same and therefore, the Committee wanted the handling loss allowed for Diesel to be applied for Kerosene also.

19. The handling loss is a concession given to the dealers on account of possible leakage. The Kerosene dealers now wanted encashment of handling loss. When it is made out that the provision regarding handling loss itself was a concession given without any statutory requirement, it cannot be said that the authority is not entitled to revise the percentage of loss. The fact that the petitioner has been enjoying this concession for years together, would not go to show that they are entitled to retain the very same benefits for the years to come. This is really a business for the dealers and it is for them to decide as to whether they should continue to do business in Kerosene or to surrender licence. There is no compulsion on the part of the petitioners to do the business in Kerosene.

20. The order impugned in this writ petition was made in strict obedience to the order passed by the learned Single Judge in the earlier round of litigation. The petitioner is now making another attempt to enjoy the benefits of the earlier notification. The petitioner is not in a position to point out any serious procedural lapses in the matter of fixation of handling loss.

21. The petitioners now wanted this Court to exercise judicial review in respect of a matter warranting expert opinion. The Government constituted a Committee comprising of experts in the field. The composition of the committee was made known to this Court and it was only after full knowledge about the members of the Committee and their experience in the field, the learned Single Judge directed the very same committee to examine the matter once again. The report submitted by the committee is not under challenge. In fact, the report was made pursuant to the order passed by the learned Single Judge. The Government have only accepted the report submitted by the Committee. The Government have not made any modification to the report submitted by the Committee. Therefore, I do not find any merit in the contentions raised on behalf of the petitioner.

22. In the upshot, I dismiss the writ petition. Consequently, the connected MPs are closed. No costs.