ALLAHABAD HIGH COURT

                Daulat Ram Gupta

                Vs

                State Of Uttar Pradesh

                (R.A.Sharma, J.)

                07.03.1995

                JUDGEMENT

R.A.Sharma, J.

1. PETITIONER was a retail dealer under U. P. High Speed Diesel Oil and Light Diesel Oil

(Maintenance of Supplies and Distribution) Order 1981 (hereinafter referred to as the Control

Order). Vide order dated 4-2-1988 the respondent No. 2 cancelled petitioner's licence on the

ground that he is carrying on the business within a radius of five kms. of regular diesel retail out

let of a company in violation of Government Order dated 10-9-1987 which has been approved by

Hon'ble Supreme Court. Being aggrieved, the petitioner has filed this writ petition challenging

both direction No. 1 of the Government Order dated 10-9-1987 and the order dated 4-2-1988.

While entertaining the writ petiti0n this Court granted interim order staying the operation of the

impugned                                orders.

( 2. ) STATE has filed counter affidavit irreply to the writ petition. We have heard learned

counsel for the petitioner and learned standing counsel for respondents. The Control Order under

which the petitioner was granted a licence has provided for licence for both whole seller and

retailer and there is no provision therein prohibiting the grant of a retail/petty diesel licence

within a radius of 5 km. of a regular diesel retail out-let. However, the Government has issued an

order dated 16-9-1987 giving direction regarding the appointment of retail/petty dealer under the

Control Order : direction No. 1 of which is as under :- "1. The Collector should not appoint any

diesel dealer within 5 kms. radius of a regular diesel retail out let of a company."The reasons for

giving the above direction, as contained in the Government Order itself are as under :-"Generally

it has been the experience that a regular diesel dealer out let serves the purpose of the consumers

of its 5 kms. area around it and remains self dependant financially. Therefore,it will be proper

and desirable to appoint a retail seller or petty diesel dealer outside the 5 kms. circle of the oil

company." Only provision under which the State Government can issue any direction is cl. 16(6)

of the Control Order, which is reproduced below : "16(6) : Every dealer shall comply with the

general or special directions not inconsistent with this Order, that may be given to him in writing

by the State Government, the Commissioner Food and Civil Supplies or the Collector for the

purpose of giving effect to the provisions of this Order and any contravention of such directions

shall be deemed to be a contravention of this Order."Under the above provisions directions which

are not inconsistent with the Control Order can be issued by the State Government, the
Commissioner or the Collector, "for the purpose of giving effect to the provisions of this
order." The Control Order does not prohibit either expressly or by necessary implication the grant
of retail dealer licencing to a person within 5 kms. of the radius of regular diesel out let. There
being no such prohibition under the Control Order, the direction No. 1 reproduced hereinbefore,
issued by the State Government is inconsistent with and is contrary to it.
( 3. ) THAT apart, imposing ban against grant of licence or carrying on business on the general
assumption is not justified. Whether a regular diesel retail out let can serve the need of the
consumers within radius of 5 kms. depend on several factors, such as population of the area, type
of the people living therein and supply of the diesel to the retail out let. What is true about one
locality/ area may not be true in the other locality/ area. This direction, as such, is arbitrary, being
based on unwarranted assumption. The Government Order is also violative of Art. 19(l)(g) of the
Constitution and is not saved by its cl. (6). Every citizen has a fundamental right to carry on any
occupation, trade or business guaranteed to him by Art. 19(g) of the Constitution. Under cl. (6)
of the said Article the State can, by law, impose reasonable restrictions on the exercise of such a
right. Restriction can be imposed by "law" which means legislative enactment and the
subordinate legislation. But a restriction cannot be imposed by executive orders unsupported by
the law. ;