Wholesale kerosene dealers were not liable to return excess profits made from selling kerosene at enhanced rates, as they were not agents of the Government and were entitled to retain legally made excess profit.

Paripoornan, J.

The State is the appellant in both the appeals. Writ Appeal No.414 of 1988 is filed against the judgment of Viswanatha Iyer J. rendered in O.P. No.3346 of 1985. Writ Appeal No.446 of 1988 is preferred against the judgment of Radhakrishna Menon, J. rendered in O.P. No.6104 of 1983. The respondents in the writ appeals are whole-sale distributors of kerosene and licensees under the Kerala Kerosene Control Order 1968. The price of kerosene is fixed by Government from time to time. In case of upward revision, i.e. increase in the price of kerosene, the dealer is bound to sell the stock, existing on the date of increase, at the pre revision price. This is so as per the direction issued by the Board of Revenue. It appears that the respondents (petitioners in the O. Ps.) sold the stock of kerosene at the enhanced rates and not at the pre-revision rates, with result that Government made demands on the respondents for payment of the difference fetched to them at such sales. Attempt was made to realise the excess profits the dealers might have obtained on account of the re-fixation of prices. Ext.Plin both the cases required the whole-sale dealers, the respondents in these writ appeals, to remit the difference of the amount so collected by selling kerosene at the enhanced rate. In O.P. No.3346 of 1985 a sum of Rs.3,560.14 was directed to be remitted by she respondent-dealer. In O.P. No.6104 of 1983 by Ext.P1 the respondent was directed to remit a sum of Rs.2412.68 as excess profit earned by the respondents consequent on the price revision by the Government. Both the learned judges came to the conclusion that the dealers (the respondents) cannot be called upon to make payment of the excess amount collected by them. It was held that the Government was incompetent to realise the differential costs of the profit made by sale of kerosene at the rate in excess of the price fixed. The learned judges relied upon the decision of Chandrasekhara Menon J. in Chandrasekhara Prabhu v. State of Kerala (ILR1976 (1) Ker.637) in coming to the aforesaid conclusion. Ext.P1 was quashed in both the cases. Aggrieved by the aforesaid judgments, by which the State was disabled from realising the amounts from the respondents, the State has filed the writ appeals from the judgment of the learned judges.

2. We heard Senior Government Pleader, Mr. E. Thankappan, who appeared on behalf of the State. It was argued that the dealers have made unauthorised profit and so, under quasi contract, they are bound to return the excess or unauthorised profit made by them. We are of the view that the above plea has no substance. Construing the very same Kerosene Control Order 1968, Chandrasekhara Menon Jin Chandrasekhara Prabhu's case (ILR 1976 (1) Ker.637) held that the whoie-sale dealers are not agents of the Government. The learned judge held that the restriction in the matter of conducting wholesale trade in kerosene has no bearing upon the question as to whether the jural relationship between the wholesale dealers and the Government is that of principal and agent, and construing the various provisions of the Kerosene Control Order, 1968, the learned judge came to the conclusion that the whole-sale dealers are not agents of the Government; nor do they have any fiduciary capacity to Government so as to enable the Government to claim excess or differential profit earned by the dealers. It is agreed that the decision of Chandrasekhara Menon J, rendered in ILR 1976 (1) Ker.637) construed the identical statutory provisions, and the decision applies to the present cases as well. Counsel for the respondents invited our attention to the Full Bench decision of this Court in Velayudhan Nair v. State of Kerala (1977 KLT 921= ILR 1977(2)Ker. 11), where in the Full Bench cited with approval the decision of Chandrasekhara Menon J in Chandrasekhara Prabhu's case (ILR 1976(1) Ker.637) in paragraph 5 of the judgment as follows:

"Any excess profit that the dealers migh