# M/s Dilip Oil Company v. State of Uttar Pradesh and others

- **Citation:** (2005) 2 ILRA 439
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-03-08
- **Case number:** Civil Misc. Writ Petition No. 38990 of 2005
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-dilip-oil-company-v-state-of-uttar-pradesh-and-others-40469
- **Pages:** 7

## Headnote

Sri Navin Sinha
Sri Arvind Srivastava
S.C. `

U.P.
Kerosene
Control
Order-1962Petitioner was appointed as whole sale
distributors
for
super
kerosene
by
corporation oil/light diesel oil- under
G.O. 19.5.90-by another G.O. 1.12.01 the
District
Magistrate
can
permit
to
continue the earlier distributor provided
such block distributor has obtained
explosive licence and establish under
ground
storage tank-despite of the
appointment of whole sale dealer by the
Indian Oil Corporation-the Respondent 6
obtained licence after 8.3.02-held-not
entitled to continue-matter remitted
back
to
the
commissioner
of
any
requirement of block distributor- even
after the appointment of whole sale
dealer.

Held- Para 14 and 19

A reading of the Government Order
dated 08.03.2002 would establish that it
permits a block distributor to continue
provided he fulfills the aforesaid two
conditions meaning thereby that the
block distributor has to be granted some
reasonable time to fulfill the aforesaid
two conditions and then the District
Magistrate
can
permit
the
block
distributor to continue as such. Since in
the facts of the present case the
respondent no. 6 had installed the
underground tank and had obtained
explosive licence he fulfilled all the
requirements of the Government Order
dated 08.03.2002 before the date the
District Magistrate has cancelled his
appointment as block distributor, it
cannot be said that the respondent no.6
was not entitled to the benefits of the
Government Order dated 8th March,

## Text

2 All] Vijai Bahadur Rai V. State of U.P. and others

 439
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD: 13.06.2005

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 38990 of 2005

M/s Dilip Oil Company
...Petitioner
Versus
State of Uttar Pradesh and others

...Respondents

Counsel for the Petitioner:
Sri Ashish Kumar Singh
Sri Ajay Kumar Singh
Sri R.N. Singh

Counsel for the Respondents:
Sri Navin Sinha
Sri Arvind Srivastava
S.C. `

U.P.
Kerosene
Control
Order-1962Petitioner was appointed as whole sale
distributors
for
super
kerosene
by
corporation oil/light diesel oil- under
G.O. 19.5.90-by another G.O. 1.12.01 the
District
Magistrate
can
permit
to
continue the earlier distributor provided
such block distributor has obtained
explosive licence and establish under
ground
storage tank-despite of the
appointment of whole sale dealer by the
Indian Oil Corporation-the Respondent 6
obtained licence after 8.3.02-held-not
entitled to continue-matter remitted
back
to
the
commissioner
of
any
requirement of block distributor- even
after the appointment of whole sale
dealer.

Held- Para 14 and 19

A reading of the Government Order
dated 08.03.2002 would establish that it
permits a block distributor to continue
provided he fulfills the aforesaid two
conditions meaning thereby that the
block distributor has to be granted some
reasonable time to fulfill the aforesaid
two conditions and then the District
Magistrate
can
permit
the
block
distributor to continue as such. Since in
the facts of the present case the
respondent no. 6 had installed the
underground tank and had obtained
explosive licence he fulfilled all the
requirements of the Government Order
dated 08.03.2002 before the date the
District Magistrate has cancelled his
appointment as block distributor, it
cannot be said that the respondent no.6
was not entitled to the benefits of the
Government Order dated 8th March,
2002. The Commissioner has correctly
interpreted the Government Order dated
08.03.2002 and has rightly held that the
conditions
imposed
under
the
Government Order dated 08.03.2002 can
be complied with prospectively only.

In such circumstances the order dated
05.05.2005 passed by the Commissioner
to the extent it permits respondent no. 6
to continue as the block distributor is
hereby quashed. The findings recorded
by the Commissioner in respect of
underground tank and explosive licence
are hereby affirmed. The Commissioner
is directed to record his finding on the
issue
as
to
whether
in
view
of
Government Orders dated 01.12.2001
and dated 08.03.2002 and from the
material
on
record,
there
is
a
requirement of block distributor being
continued in Block Chanewa, district
Mirzapur even after appointment of
wholesale dealer by the oil company for
distribution of kerosene oil in rural
areas.

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard Sri R. N. Singh Senior
Advocate assisted by Sri A. K. Singh
Advocate on behalf of the petitioner, Sri
Navin Sinha Senior Advocate assisted by
Sri Arvind Srivastava Advocate on behalf
440 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
of respondent no. 6 and Standing Counsel
on behalf of respondent nos. 1, 2, 4 and 5.

2. For the purpose of distribution of
Super Kerosene Oil / Light Diesel Oil in
rural areas through fair price shop agents
the State Government came out with a
policy
decision
as
contained
in
Government Order dated 19.05.1990.
Under the said Government Order it was
provided that there shall be only one
block distribution centre / whole seller for
each block and all fair price shop agents /
retailers shall obtain supply of kerosene
oil from the said wholesale dealer. It was
further provided that the whole sellers
appointed by the oil companies may be
appointed block distributor under the
Uttar Pradesh Kerosene Oil Order, 1962.
Under
the
provisions
of
the
said
Government Order dated 19.05.1990 M/s
Indo Traders Corporation, respondent no.
6, through its Proprietor Sri Bal Krishna
Agarwal,
was
appointed
as
Block
Distributor for Super Kerosene Oil/Light
Diesel Oil in respect of Block Chanewa,
district
Mirzapur
vide
order
dated
24.07.1990
and
was
authorized
to
distribute kerosene oil for the said block
and accordingly a licence in Form 3-Ka
under the U.P. Kerosene Oil Order, 1962
was issued in favour of respondent no. 6.
While respondent no. 6 was continuing as
Block
Distributor
as
aforesaid
an
advertisement
dated
01.10.1993
was
published by the Indian Oil Corporation
inviting applications for appointment of
wholesale dealers by the oil company in
respect of the said block Chanewa. The
petitioner applied for appointment as
wholesale dealer in pursuance of the said
advertisement
and
was
ultimately
appointed as wholesale dealer of the oil
company vide letter dated 09.02.1999.
The petitioner has also been granted a
licence for the said purpose under the
U.P. Kerosene Oil Order, 1962.

3. On 01.12.2001 a Government
Order was issued whereby it was provided
that
the
Government
Order
dated
19.05.1990 contemplated that in the
blocks where wholesale dealers have not
been appointed by the oil company, the
District Magistrate shall appoint a block
distributor under U.P. Kerosene Oil
Order, 1962. Therefore, under the
Government Order dated 19.05.1990 the
block distributor cannot function, a
whole-seller is appointed by the oil
companies in respect of the block
concerned. The Government Order dated
01.12.2001, however, provided that even
after appointment of wholesale dealer by
the oil company if the District Magistrate
considers it necessary to continue with the
block distributor appointed by him, earlier
for distribution of kerosene in the area, he
may do so and the State Government has
no objection to it. The aforesaid
Government Order dated 01.12.2001 was
modified by another Government Order
dated 08.03.2002 wherein it was provided
that such block distributors who are
continuing under the Government Order
dated 01.12.2001 should obtain explosive
licence and establish underground storage
tank, before they can be permitted by the
District Magistrate to continue even after
appointment of wholesale dealer by the
oil company.

4.

The
petitioner
after
his
appointment as wholesale dealer in
respect of Block Chanewa made a
representation against continuation of
respondent no. 6 as block distributor. A
Committee
was
constituted.
The
Committee
submitted
its
report
on
23.01.2003. The District Magistrate
2 All] M/s Dilip Oil Company V. State of U.P. and others

 441
required the District Supply Officer to
take necessary action on the complaint of
the petitioner. The District Supply
Officer cancelled the block distributorship
of
M/S
Indo
Traders
Corporation,
respondent no. 6 vide order dated
28.04.2003. Against the order of the
District Magistrate dated 02.03.2003 M/s
Indo Traders Corporation filed Appeal
No.
241
of
2003
before
the
Commissioner,
Vindhyachal
Division,
Mirzapur. The appeal so filed by
respondent no. 6 has been dismissed by
the Commissioner vide order dated
07.06.2003. Thereafter the respondent
no. 6 filed Writ Petition No.26223 of
2003
challenging
the
order
dated
28.04.2003 passed by the District Supply
Officer, Mirzapur and the order dated
07.06.2003 passed by the Commissioner
in appeal. The writ petition was disposed
of with a direction upon the licensing
authority to re-consider the claim of
respondent no. 6 in accordance with the
Government Order dated 08.03.2003 and
to pass fresh orders in accordance with
law. On the basis of the aforesaid
judgment of this Court the District
Magistrate (licensing authority) passed
the order dated 15.03.2005 rejecting the
representation of the petitioner dated
27.12.2004 and held that there was no
requirement of any block distributor
because of appointment of the petitioner
as wholesale dealer. Against the said
order of the District Magistrate, Mirzapur
dated 15.03.2005 the respondent no. 6
filed an appeal before the Commissioner,
Vindhyachal Division, Mirzapur. The
appeal was registered as Appeal No. 156
of 2005. Vide order dated 07.04.2005 the
Commissioner delegated his power under
Section 28 (1) of U.P. Scheduled
Commodities Distributor Order, 2004 to
the
Assistant
Food
Controller,
Vindhyachal Division, Mirzapur, to hear
and dispose of the appeals filed under the
Public Distribution System Control Order.
On 21.04.2005 an interim order was
granted in the appeal so filed by
respondent no. 6 staying the operation of
the order of the District Magistrate dated
26.04.2003 and dated 15.03.2005. The
petitioner filed writ petition against the
order dated 21.04.2005 passed in appeal
and was numbered as Writ Petition No.
34033 of 2005. The writ petition was
disposed of by this Court by means of
judgment and order dated 28.04.2005
with a direction to the Commissioner to
decide the appeal.

5. The commissioner vide order
dated 05.05.2005 has allowed the appeal
and has held that since respondent no. 6
has obtained explosive licence and has
installed an underground tank he is
entitled to continue as block distributor in
terms of the Government Order dated
08.03.2002, therefore the order passed by
the District Magistrate dated 15.03.2005
and 26.04.2003 deserve to be set aside. It
is against the order dated 05.05.2005
passed by the Commissioner in the appeal
that the petitioner has filed the present
writ petition.

6. On behalf of the petitioner it is
contended that the District Magistrate in
his order dated 15.03.2005 has recorded a
specific finding that on the relevant date
the date of the Government Order
08.03.2002 the petitioner had not obtained
any explosive licence nor he had installed
the under ground storage tank and,
therefore, the petitioner was not entitled
to continue as block distributor. The
respondent no.6 had the underground tank
and had also obtained explosive licence,
he fulfilled the conditions as contained in
442 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
the Government Order dated 8th March,
2002.

7. The petitioner submits that the
crucial date for determining the right to
continue as block distributor would be the
date of the Government Order i.e.
08.03.2002 and on the said date the block
distributor should have obtained explosive
licence
and
should
have
installed
underground tank.

8. Lastly it is submitted on behalf of
the petitioner that while allowing the
appeal
the
Commissioner
has
not
recorded any finding in respect of the
issue,
namely
"Whether
the
Block
Distributor
was
still
required
for
distribution of kerosene oil in the rural
areas after the appointment of wholeseller by the Oil Company or not".

9. On behalf of respondent no. 6 it is
submitted that prior to the passing of the
Government Order dated 08.03.2002 there
was no requirement of any underground
tank being installed or an explosive
licence being obtained by the block
distributor and, therefore, the condition
imposed under the Government Order
dated 08.03.2002 has necessarily to be
applied prospectively and if the block
distributor obtains an explosive licence
and installs an underground tank in terms
of the Government Order dated 8th March,
2002, he would become entitled to
continue as block distributor even where a
wholesale dealer has been appointed by
the oil company. It is, therefore,
submitted that the Commissioner has
rightly held that since on the date of
passing of the impugned order dated
15.03.2005 by the District Magistrate the
respondent no. 6 had already installed the
underground tank and had also obtained
an explosive licence, he fulfilled all the
conditions of the Government Order dated
08.03.2002 and was entitled to continue
as such.

10. Lastly it is pointed out on behalf
of respondent no. 6 that since there was
no dispute with regard to distribution of
kerosene oil by the respondent no. 6 in the
rural areas even after appointment of the
wholesale dealer by the oil company no
finding was required to be recorded by the
Commissioner in respect of the said issue.

11. I have heard learned counsel for
the parties and gone through the record of
the writ petition.

12. From the facts as emerge from
the pleadings of the parties as well as
from the contentions raised on behalf of
the parties it is apparent that the dispute is
confined to the following issues:--
(i) Whether a block distributor should
have
necessarily
installed
an
underground tank and should have
obtained an explosive licence on or
before 08.03.2002 i.e. the date on
which the Government Order was
issued for being permitted to continue
as block distributor or else he
becomes entitled to continue as block
distributor
on
completing
the
aforesaid
conditions
on
any
subsequent date?
(ii) Whether the terms of the Government
Order
dated
01.12.2001
and
08.03.2002 are to be read together
and it is necessary for the District
Magistrate
to
record
a
finding/satisfaction that the block
distributor is required to continue for
distribution of kerosene oil in rural
areas even after appointment of
2 All] M/s Dilip Oil Company V. State of U.P. and others

 443
wholesale dealer for distribution of
kerosene oil in the block?

Issue No.I:

13. So far as the first issue is
concerned suffice it to point out that prior
to issuance of Government Order dated
08.03.2002 there was no requirement for
the block distributor to have obtained an
explosive licence or to have installed an
underground tank. The aforesaid two
conditions have been imposed for the first
time under the Government Order dated
08.03.2002. To install underground tank
or to obtain explosive licence would,
therefore, take some time.

14. A reading of the Government
Order dated 08.03.2002 would establish
that it permits a block distributor to
continue provided he fulfills the aforesaid
two conditions meaning thereby that the
block distributor has to be granted some
reasonable time to fulfill the aforesaid two
conditions
and
then
the
District
Magistrate
can
permit
the
block
distributor to continue as such. Since in
the facts of the present case the
respondent no. 6 had installed the
underground tank and had obtained
explosive licence he fulfilled all the
requirements of the Government Order
dated 08.03.2002 before the date the
District Magistrate has cancelled his
appointment as block distributor, it cannot
be said that the respondent no.6 was not
entitled to the benefits of the Government
Order dated 8th March, 2002. The
Commissioner has correctly interpreted
the Government Order dated 08.03.2002
and has rightly held that the conditions
imposed under the Government Order
dated 08.03.2002 can be complied with
prospectively only.
Issue No. II:

It would be worthwhile to refer to the
order
passed
by
this
Court
dated
10.12.2004 wherein it was held as
follows:--

"From the facts brought on record,
there is no dispute that appointment of
wholesale dealer has already been made
by appointing respondent No.5. The
question as to whether petitioner be
allowed to continue as block distributor
has to be considered in accordance with
the Government Order dated 8th March,
2002 and it was for the licensing
authority to have applied its mind to
relevant criteria and conditions as laid
down in the government order, namely (i)
as to whether the block distributor has
obtained licence from the explosive
department, (ii) as to whether the block
distributor established underground tank,
and (iii) as to whether the block
distributor is still continuing distribution
of kerosene oil in the rural area."

15. This Court had required the
District Magistrate to record specific
finding with regard to the three issues as
have been noticed hereinabove. From the
record of the present case it is apparently
clear that neither the District Magistrate
nor the Commissioner have recorded any
finding in respect of the third issue so
directed by this Court.

16. The Government Order dated
08.03.2002
does
not
supersede
the
Government Order dated 01.12.2002.
The subsequent Government Order dated
08.03.2002 is in continuation of the
earlier
Government
Order
dated
01.12.2001 and, therefore, both the
Government Orders are necessarily to be
444 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
read together. A combined reading of
both the Government Orders would
establish beyond doubt that continuation
of the block distributor subsequent to the
appointment of wholesale dealer by the
oil company, has been made dependent
upon three factors-(a) there is a
requirement, to the satisfaction of the
District Magistrate for continuation of the
block distributor for distribution of the
kerosene oil in the block even after
appointment of the wholesale dealer by
the oil company, (b) the block distributor
has installed the underground tank, and
(c) the block distributor has obtained
explosive licence.

17. So far as conditions (b) and (c)
are concerned the controversy does not
survive any further in view of the finding
recorded by the Commissioner which
have been affirmed by this Court
hereinabove.

18. As far as condition (a) is
concerned the District Magistrate as well
as the Commissioner were necessarily
required to consider as to whether there is
a requirement for continuance of the
block distributor for distribution of the
kerosene oil in the block even after
appointment of the wholesale dealer by
the oil company. The requirement of the
block distributor to continue even after
appointment of the wholesale dealer by
the oil company for distribution of
kerosene oil in the block is also one of the
conditions precedent for continuance of
the block distributor under Government
Orders referred to above. Normally this
Court would have remanded the matter to
the District Magistrate for recording a
finding in respect of the said issue,
however, such a course is not being
adopted in the facts of the present case
inasmuch as the District Magistrate who
is licensing authority on earlier occasion
vide order dated 28.04.2003 has held that
there was no requirement of continuance
of the block distributor subsequent to the
appointment of wholesale dealer by the
oil company. It would, therefore, be
appropriate that the Commissioner may
be required to record his finding on the
basis of record in respect of the aforesaid
issue also before respondent no. 6 can be
permitted under law to continue as block
distributor.

19. In such circumstances the order
dated
05.05.2005
passed
by
the
Commissioner to the extent it permits
respondent no. 6 to continue as the block
distributor is hereby quashed. The
findings recorded by the Commissioner in
respect
of
underground
tank
and
explosive licence are hereby affirmed.
The Commissioner is directed to record
his finding on the issue as to whether in
view
of
Government
Orders
dated
01.12.2001 and dated 08.03.2002 and
from the material on record, there is a
requirement of block distributor being
continued in Block Chanewa, district
Mirzapur even after appointment of
wholesale dealer by the oil company for
distribution of kerosene oil in rural areas.
The Commissioner shall decide the matter
as early as possible, preferably within six
weeks from the date a certified copy of
this order is filed before him.

The writ petition stands partly
allowed.
---------
2 All] M/s Dilip Oil Company V. State of U.P. and others

 445
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.03.2005

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 12319 of 1982

Badri Narain

...Petitioner
Versus
Deputy Director of Consolidation and
others

 ...Respondent

Counsel for the Petitioner:
Sri N.P. Misra
Sri D.N. Shukla
Sri R.S. Yadav

Counsel for the Respondents:
Sri Anuj Kumar
S.C.

U.P.
Consolidation
of
Holdings
ActSection 11(2), 21 (5), 48 readwith as
amended by amending Act 1963-Power
of Revision-S.O.C. decided the appeal on
16.1.67-under some misconception on
application dt. 17.2.68-D.D.C. allowed
the conversion of revision into second
appeal maintainable? held-not, whether
is the Revision against the order passed
by D.D.C. in Second Appeal maintainable
before the Director of Consolidation?
Held-'No'

Held: Para 12 & 13

From the aforesaid settled legal position,
it is clear that after 8.3.1963 no second
appeal was maintainable and only a
revision could have been filed. The
petitioner though initially filed a revision
but under some misconceived notion of
law got it converted into Second appeal
though the same was not maintainable.

The
only
question
is
whether
the
petitioner had a further remedy of filing
a
revision
before
the
Director
of
Consolidation against the order dated
12.7.1968 passed by Deputy Director of
Consolidation deciding the proceedings
treating it to be a Second Appeal. In
view of the decision of the larger bench
in the case of Gauri Shakar Vs. Sidhnath
Tiwari (supra) the revision against the
order dated 17.2.1968 would not be
maintainable
and
has
rightly
been
dismissed.
Case law discussed:
1964 AWR-68
1966 A.L.J. 641 (F.B.)
1968 A.L.J. 933 (Larger Bench)

(Delivered by Hon'ble Krishna Murari, J.)

1. Heard learned counsel for the
petitioner and learned standing counsel.

2. Though the case has been taken
up in revised list no one appeared for
respondent no.2.

3. Shorn of unnecessary details, the
facts relevant for the purpose of the case
are
that
village
was
notified
for
consolidation operations in 1962. The
petitioner filed an objection under Section
9 of the Act claiming Sirdari rights over
the land in dispute which was dismissed
by Consolidation Officer. Appeal filed by
him was also dismissed by the Settlement
Officer Consolidation. Feeling aggrieved
the petitioner filed a revision before the
Deputy Director Consolidation.

4. Under a misconception that since
proceedings were initiated under the
unamended Act which provided for a
Second Appeal before Deputy Director of
Consolidation and thereafter a revision
before Director of Consolidation, the
petitioner moved an application dated
17.12.1968 for converting the revision
into the Second Appeal which was
allowed by the Deputy Director of
Consolidation and on the same day he