Point of Law : Article 300A of the Constitution has no application to Kerosene purchased by a dealer. The grounds raised in the writ petition are mainly based on Article 300A of the Constitution.

JUDGMENT :

These writ petitions are connected, and therefore, I am disposing of these writ petitions by a common judgment. In these writ petitions, petitioners challenge the constitutional validity of the first proviso to Clause 8A of the Kerosene Control Order, 1968 (for short, the Order 1968).

2. The learned counsel for the petitioners submitted that W.P.(C). No.5773 of 2019 can be taken as the main case because common grounds are raised in all the writ petitions. Therefore, I will consider the facts and exhibits in W.P.(C). No.5773 of 2019.

3. The petitioners are Kerosene wholesale dealers. The distribution and sale of Kerosene are regulated by various provisions under the Kerosene Control Order, which was framed by invoking the powers under the Essential Commodities Act. There was a series of litigations between the dealers like the petitioners and the Government about the payment differential cost between the revised wholesale selling price and the pre-revision selling price of Kerosene. Ultimately Clause 8A and its proviso were inserted by SRO No.1083/88 dated 12.09.1988. As per Clause 8A, a wholesale dealer shall sell Kerosene at the wholesale selling price fixed by the District Collector from time to time under orders issued by the State Government having regard to the provisions of Kerosene (Fixation of Ceiling Prices) Order, 1970. The first proviso to Clause 8A says that whenever the issue price of Kerosene is revised upward, the differential cost worked out at the difference between the revised wholesale selling price and pre-revision selling price on the closing stock available with the dealer on the close of business on the day previous to the day on which the revised rate comes into force shall be payable to the Government by the wholesale dealer. The constitutional validity of this proviso to Clause 8A is challenged in this writ petition. It is also contended that without furnishing the relevant details, huge amount is demanded from the petitioners under different heads. Those notices were also challenged in this writ petition.

4. Heard the learned Senior Counsel Sri.N.N.Sugunapalan, as instructed by his retaining counsel Advocate Keerthi M. I also heard the learned Senior Government Pleader Smt.Deepa Narayanan for the official respondents.

5. The learned Senior Counsel submitted that the first proviso to Clause 8A of the Order 1968 is unconstitutional. According to the learned Senior Counsel, the dealers are purchasing Kerosene from the companies, and therefore it is their property. If there is an upward change of the price rate for Kerosine, the profit is always entitled to the petitioners is the submission. The learned Senior Counsel also submitted that if the 1st proviso to Clause 8A is continued, it amounts to a situation where the property of the petitioners is taken over by the Government arbitrarily without giving compensation. The short point raised by the petitioners, in this case, is that it violates Article 300A of the Constitution of India. According to the learned Senior Counsel, there is no principal–agent relationship between the Government and the dealer. The senior counsel submitted that the Government cannot deprive the property of an individual without paying compensation. A compilation of decisions of this court and apex courts is produced to support his arguments. The learned Senior Counsel relied on the judgments in Chandrasekhara Prabhu v. State of Kerala [AIR 1976 Ker 99], Velayudhan Nair v. State of Kerala [AIR 1977 Ker 181 (FB)], Taluk Supply Officer v. Parakkottil Brothers [AIR 1992 Ker 213], A Venkata Subbarao and Others v. State of AP and Others [1965 KHC 735], State of West Bengal v. Subodh Gopal Bose and Others [AIR 1954 SC 92], Hindustan Petroleum Corpn Ltd. v. Darius Shapur Chenai and Others [2005 (7) SCC 627], Tukaram Kana Joshi & Others The Power of Attorney Holder v. MIDC & Others [2013 (1) SCC 353], The State of Maharashtra v. Himmatbhai Narbheram Rao and Others [AIR 1970 SC 1157