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P R E S E N T:-
Versus
Tapash Mookherjee, J:
The Court:-
1. The Legal validity of the West Bengal Lubricating Oil Licensing Order,
1967, (in short, Licensing Order, 1967) and a notification being No. 2864-
FS, dated 3rd August, 2000 are in challenge in this Writ Petition.
registered under the West Bengal Society Registration Act, 1961 and the
E. C. Act) was enacted at a time when there was acute crisis of some
between the demand and supply of Lubricating Oil in the market for
which both the supplies and price used to be controlled by the Central
Lubricating Oil in the market and the market became fully competitive
brand like any other consumer goods. So, in view of such a radical
change, whatever necessity was there prior to control of the supply and
price etc. of the Lubricating Oil, no more exists today and since the
Lubricating Oil is now a free trading commodity the licensing order, 1967
not connected with the object stated in the order and the traders of the
of the Lubricating Oil in any State other than the State of West Bengal.
Licensing Order, 1967 has not defined Lubricating Oil. Lubricating Oil is
Petroleum Act or any other Central Act. So, the State has no Legislative
5. It is the further case of the Petitioners that considering all such facts and
operation of the Licensing Order, 1967 was reimposed without any valid
reason whatsoever.
Commodities Act, 1955 to pass such a control order and the number of
Petitioners is that the Licensing Order, 1967 is stated to have been made
Com. GEN/ – 66, dated 18th June, 1966. But the said S. O. has not been
produced by the State. So, it has not been proved as to what is the
his further view that there is a possibility of there being no such order at
all and according to Mr Chatterjee the enter case of the State should fail
the E. C. Act and lubricating oil has not been mentioned as an essential
that lubricating oil has not been defined in the Petroleum Act, 1934
Central Act or orders and the fact being so, the State has no legal
oil.
10. It is the further contention of Mr Chatterjee that the several clauses in
the Licensing Order, 1967 are not in confarmity with the object stated in
compels the dealers of the lubricating oil for obtaining fire license.
12. Thus, challenging the legal basis as well as the utility of the Licensing
Order, 1967 the Petitioners pray for striking down of the Licensing Order,
1967 as being ultra vires the E. C. Act and also for cancellation of the
13. In reply, learned Senior Standing Counsel Mr Banerjee appearing for the
Central Government and the order has been passed under Section 3 of
the E. C. Act. He has further submitted that such delegation has been
mentioned in S. O. No. 26 (II) – Com. GEN/ - 66, dated 18th June, 1966.
Mr Banerjee has further argued that although the lubricating oil has not
been included in the Schedule of the E. C. Act but it has been described
in many other Central Acts and orders and on the basis of those
Licensing Order, 1967. Mr Banerjee has further argued that all the
licenses have been all made for the public interest and the State have
the legal authority delegated by the Central Government to make such
orders and hence the Petitioners’ claims are all devoid of any legal basis.
14. The Licensing Order, 1967 has been passed under Section 3 of the E. C.
No. 26 (II) – Com. Gen/- 66 as stated in the order itself. But the said
order or its copy has not been produced in the case by the
efforts he could not procure a copy of the order from any source. It is his
contention that since the number and description of the order has been
was very much essential to look into and ascertain the powers, if any,
product.
16. The Petroleum Act, 1934 has not defined petroleum product. Section 2
(a) of the Petroleum Act has defined petroleum in the following way.
17. Section 2 (b), (bb) and (bbb) have classified petroleum according to
flash-point. The flash-point of any lubricating oil is far above the flush
points mentioned therein. So, the definition does not cover lubricating
in the orders.
20. Mr Banerjee has submitted that according to the lubricating oils and
Central Excise Tariff Act, 1985. The said sub-clause 2710.70 in the
Central Excise Tariff Act, 1985 says “hydrocarbon oil which has his
particular kind of oil used for a particular purpose, i. e., batching of Jute
Tonne or other fibre which is totally different from the lubricating oil,
used in Automobiles.
21. In fact, Mr Banerjee could not show any Act or Rule according to which
Bengal Fire Services (Fire Licenses) Rules 2004 treats petroleum product
and lubricating oil differently in Schedule- I to the said Rules (Item No.
82, 83 and 128, 129). The Petroleum Products Supply and Distribution)
22. E. C. Act was enacted at a time when there was a huge shortage and
situation, the E. C. Act was enacted “in the interests of the general
public, for the control of the production, supply and distribution of, and
lubricating oil”. The object thus stated is no doubt appreciable, but none
23. There might have been crisis, black marketing etc. of lubricating oils in
1960s but the scenario since the last few decades is entirely different.
lubricating oil and the market of lubricating oil is now very much
of the Order a dealer has to specify the specific address from where he
shall conduct sells and also where he is supposed to store the goods. The
dealers has to change their policies of purchase, sell and storage of the
25. The most controversial point raised by the Petitioners in this case is the
provision of fire license in the Licensing Order, 1967. The order itself
does not say about any fire licenses being essential for running the
26. Section 12 of the West Bengal Fire Services Act, 1950 puts bar to use
this provision.
27. Now comes the question, what is ‘hazardous substance’. Section 2 (h)
of the West Bengal Fire Services Act, 1950 has defined hazardous
substance as follows:-
(i) Such explosive within the meaning of the Indian Explosives Act, 1884
(4 of 1884), or
so, no license under Section 12 of the West Bengal Fire Services Act,
30. Thus, the Licensing Order, 1967 have put some unfair and
31. The Hon’ble Apex Court in a decision reported in (2006) 4 SCC 327
and Others) have laid down that making a Rule for a purpose which is
not the object of the main Act amounts to unreasonable exercise of Rule
making power and that the Rules must be framed to carry out the
purposes of the main Act. It has been further held in the judgment that
the State is not free to impose any condition it desires, if such condition
Licensing Order, 1967 does not satisfy such principles, laid down by the
the State has not been proved. The provisions in the Licensing Orders are
not in tune with the object of the E. C. Act. Those are not in tune even
with the object stated in the order itself. The object stated in the order
has become irrelevant in view of the radical change of the scenario and
as such the purpose no more exists today. The Licensing Order have
(1) (g) of the Constitution of India. So, for this reasons and decisions
mentioned above, the West Bengal Lubricating Oil Licensing Order, 1967
33. The Writ Petition is accordingly allowed without any order as to costs.
formalities.
(Tapash
Mookherjee. J)
Later:
35. After passing of the judgment, Mr Dhar, learned Advocate appearing for
the State respondents prays for stay of the operation of the judgment
and order passed today. Mr Karmakar, learned Advocate appearing for
(Tapash Mookherjee. J)