Madras High Court
Tamil Nadu Kerosene Dealers' ... vs The Government Of Tamil Nadu on 19 July, 2021
W.A.No.16 of 2013 and M.P. Nos.1 & 2 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.07.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
W.A.No.16 of 2013 and M.P.Nos.1 & 2 of 2013
Tamil Nadu Kerosene Dealers' Association
rep. by its President A.Kannabiran
87, Old No.14 Karneeswarar Pakoda Street,
Chennai-600 004. ... Appellant
-vs-
1.The Government of Tamil Nadu,
rep. by its Secretary,
Co-operation, Food and Consumer
Protection Department,
Fort St. George,
Chennai 600 009.
2.The Commissioner,
Civil Supplies and Consumer Protection Department,
Chepauk, Chennai 600 005.
3.The General Manager,
State Level Co-ordinator,
Indian Oil Bhavan,
Nungambakkam,
Chennai 600 034. ... Respondents
1/10
http://www.judis.nic.in
W.A.No.16 of 2013 and M.P. Nos.1 & 2 of 2013
Prayer: Writ Appeal filed under Clause 15 of the Letters Patent against the
order passed by His Honourable Mr.Justice K.K.Sasidharan dated
01.11.2012 and made in W.P. No.22660 of 2011.
For Appellant : Mr.K.Doraisamy,
Senior Counsel for
Mr.Muthumani Doraisami
For Respondents : Mr.T.Arunkumar,
Government Advocate
for R1 & 2
Mr.Abdul Saleem for R3
JUDGMENT
(Judgment of the Court was delivered by T.RAJA, J.)
This writ appeal has been directed against the impugned order dated
01.11.2012 passed by the learned Single Judge in W.P. No.22660 of 2011.
2.Assailing the impugned order, Mr.K.Doraisamy, learned senior
counsel representing for Mr.Muthumani Doraisami, learned counsel
appearing for the appellant submitted that the appellant is an Association of
Kerosene dealers and that the Members of the Association made a
representation to the Government of Tamil Nadu, the first respondent herein,
which, in exercise of the powers conferred under the provisions of the
http://www.judis.nic.in
W.A.No.16 of 2013 and M.P. Nos.1 & 2 of 2013
Essential Commodities Act, had issued a Government Order in G.O. Ms.
No.442, Food and Co-operation Department dated 05.09.1980 fixing the
handling/leakage loss for kerosene at 1% of the cost of 1 kiloliter. Learned
senior counsel submitted that from the date of issuance of the said G.O. till
the date of filing the above writ petition, the appellant and others were
enjoying the handling loss at 1%. Even though the appellant and others have
been sustaining more than 1% handling loss, the members were satisfied
with the 1% benefit given by the Government. While so, the first respondent
passed another Government Order in G.O. Ms. No.96, Co-operation, Food
and Consumer Protection Department dated 24.05.2000 by reducing the
handling loss from 1% to 0.25%. Based on the above said G.O., the second
respondent issued a Circular reducing the handling loss from 1% to 0.25%
without assigning any valid reason. Challenging the said G.O., the appellant
and others filed a batch of writ petitions in W.P. Nos.6575 of 2001 etc. and
they were allowed by common order dated 20.07.2010 by quashing the
above G.O. with a direction to the committee constituted by the Government
under G.O. Ms. No.285, Co-operation, Food and Consumer Protection
Department dated 18.12.1998 to examine the question relating to the
physical component of leakage allowance as per the reference made in the
http://www.judis.nic.in
W.A.No.16 of 2013 and M.P. Nos.1 & 2 of 2013
said Government Order and submit a report within a period of four weeks
and a direction to the members Association including the President and the
Secretary of Tamil Nadu Petroleum Dealers' Association to co-operate for
submission of report within the time frame and the Government to issue
appropriate order or notification in respect of physical component of leakage
allowance due to storage and handling loss for the wholesalers and by
permitting the appellant and others to enjoy the leakage allowance at 1%
towards physical component. In spite of the above direction, no member
whatsoever was given any opportunity to put forth his views and grievances.
Finally, G.O. (Rt) No.75 Co-operation, Food and Consumer Protection (C2)
Department dated 08.09.2011 was passed simply reiterating the earlier order
reducing handling loss from 1% to 0.25%. Therefore, the appellant
association was constrained to come to this Court challenging the above
G.O. (Rt) No.75 and communication of the second respondent in
RC.Lr.No.K4/22193/2010 dated 23.09.2011. However, the learned Single
Judge, holding that reduction in handling loss was made primarily on
account of the loss fixed by the Government of India with respect to
petroleum products and that kerosene is termed as Class “B” petroleum
product and that the Government of India re-fixed the handling loss of
http://www.judis.nic.in
W.A.No.16 of 2013 and M.P. Nos.1 & 2 of 2013
petroleum products at 0.25% with effect from 1st August 2005, has
dismissed the above writ petition. Learned senior counsel further submitted
that the approach adopted by the learned Single Judge is un-justified for two
reasons. Firstly, when the evaporation of kerosene takes places at the time of
handling and unloading, which resulting in more than 1% loss, kerosene
cannot be compared with petroleum products. Secondly, when this Court
has given a specific direction to all the members including the President and
Secretary of Tamil Nadu Petroleum Dealers' Association to co-operate for
submission of report within the time frame and after submission of the
report by the Committee, it should be given to the members of the appellant
association, the same has not been done. Therefore, the appellant association
are not able to put forth their grievances properly and hence, they have been
put to face the prejudice. As the Committee has submitted the report
reducing the handling loss from 1% to 0.25%, prejudice will be caused to
the members of the appellant association. Since the respondents' justification
for reducing handling/leakage loss from 1% to 0.25% is unsustainable, a
direction may be issued to the respondents to furnish a copy of the report
and a liberty may be given to challenge the same.
http://www.judis.nic.in
W.A.No.16 of 2013 and M.P. Nos.1 & 2 of 2013
3.Opposing the above prayer, learned Government Advocate
appearing for the respondents submitted that the appellant association did
not take any step to include their names to be heard before the Committee.
4.Heard both sides.
5.It is pertinent to extract a relevant para of the impugned order
passed by the learned Single Judge as under:
'19.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.'
http://www.judis.nic.in
W.A.No.16 of 2013 and M.P. Nos.1 & 2 of 2013
6.A perusal of the above order shows that the reduction in handling
loss was made primarily on account of the loss fixed by the Government of
India with respect to petroleum products and the report submitted by the
committee given 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. Moreover, the learned Single Judge
has rightly found that the report submitted by the Committee is not under
challenge and that the report was made pursuant to the order passed by the
learned Single Judge and that the Government have only accepted the report
submitted by the Committee and the Government have not made any
modification to the report submitted by the committee.
7.Besides, it is pertinent to note two other vital factors; firstly, the
allowance of leakage/handling loss has been in vogue for nearly 31 years
and it is not only in the State of Tamil Nadu, but also in other States. While
so, the leakage/handling loss was provided to an extent of 1% per kiloliter.
However, the Government issued G.O. Ms. No.96, Co-operation, Food and
Consumer Protection Department, dated 24.05.2000, reduced the handling
loss from 1% to 0.25%. Even though the said G.O. has been passed on
http://www.judis.nic.in
W.A.No.16 of 2013 and M.P. Nos.1 & 2 of 2013
24.05.2000, the same has not been given effect to till 16.03.2001. The
second respondent, based on the above said G.O. issued a Circular on
17.03.2001 reducing the handling loss from 1% to 0.25%. Secondly, the
price of diesel is now at Rs.95/- per liter, whereas the price of kerosene is
now at Rs.35/- per liter, therefore, in our considered view, fixing of leakage
price at Rs.0.25/- per liter to kerosene also is in order.
8.Thus, for the reasons stated above, we are not able to find any error
or infirmity in the said order passed by the learned Single Judge.
Accordingly, this appeal stands dismissed. Consequently connected M.Ps
are closed. No costs.
(T.R.J.) (V.S.G.J.)
19.07.2021
vga
Index: Yes/No
Speaking/Non Speaking Order
http://www.judis.nic.in
W.A.No.16 of 2013 and M.P. Nos.1 & 2 of 2013
To
1.The Government of Tamil Nadu,
rep. by its Secretary,
Co-operation, Food and Consumer
Protection Department,
Fort St. George,
Chennai 600 009.
2.The Commissioner,
Civil Supplies and Consumer Protection Department,
Chepauk, Chennai 600 005.
3.The General Manager,
State Level Co-ordinator,
Indian Oil Bhavan,
Nungambakkam,
Chennai 600 034.
http://www.judis.nic.in
W.A.No.16 of 2013 and M.P. Nos.1 & 2 of 2013
T.RAJA, J.
and
V.SIVAGNANAM, J.
vga
W.A.No.16 of 2013 and M.P.Nos.1 & 2 of 2013
19.07.2021
http://www.judis.nic.in
