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G. SREEKUMAR PRABHU V/S INDIAN OIL CORPORATION, ERNAKULAM DISTRICT & OTHERS, decided on Tuesday, March 26, 2013.
[ In the High Court of Kerala, WP(C).No. 26576 of 2012 (V). ] 26/03/2013
Judge(s) : C.K. ABDUL REHIM
Advocate(s) : G. Krishnakumar, Mrs. M.P. Rethnam, Mrs. P.M. Naseema, Titto Thomas. R1 & R2, M. Gopikrishnan Nambiar, P. Gopinath, P. Benny Thomas, K. John Mathai, , P. Parameswaran Nair, ASG Of India.
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  "2013 (2) KLT 274"  ==   "2013 (2) ILR (Ker) 386"  ==   "2013 (2) KLJ 576"  







    Constitution of India - Article 226 - Clause 2 (gg) and Clause 3 of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) order 2000 - household-domestic LPGconnection -surrender LPG-restore supply -allottee-subcriber-not mentioned-writ petition -petitioner an allotte of LPGconnection challenging Exp7proceeding issued by respondent no 2 holding that petitioner?s household is not eligible for more than one domestic connection and directed petitioner to surrender the extra LPG connection with regard to consumer no 5111-petitioner praying for quashing the impugned proceedings and for restoring the supply of LPG connection with regard to connection no 5111-Court Held - The provision of Liquefied petroleum Gas (Regulation of Supply and Distribution) Order 2000 as amended in 2009 specifically stipulates that in Clause 3 Sub-clause 1 A household having a connection for Liquefied Petroleum Gas under the public distribution system shall not possess more than one connection of liquefied petroleum gas granted under the public distribution system) household means a family consisting of husband wife unmarried children and dependent parents living together in a dwelling unit having common kitchen-inspection team found an extra LPG connection in petitioner?s household kitchen but name of the subscriber is not mentioned in Exp7 proceeding -Exp7 proceeding does not state that all the 3 LPG connections found in the petitioner?s household stands in the name of petitioner -one LPG connection stands in the name of petitioner?s father -inspection team found all the LPG connection in the same kitchen -Merely because 3 connections were detected in the same dwelling unit or in the common kitchen the petitioner cannot be blamed of having more than one connection with respect to his household.-Hence writ petition allowed Exp7 quashed -Respondent 1 to 3 directed to restore supply of LPGconnection to petitioner and consumer No.5111 as and when requested subject to priority and availability-It is made clear that if at any time it is found by respondents 1 to 3 that the petitioners household is having more than one domestic LPG connection under the public distribution system or that any person holding another connection under the public distribution system who is residing in the same dwelling unit and sharing common kitchen is a member of the household of the petitioner or that any other household residing in same dwelling unit and sharing the common kitchen is having more than one connection under the PDS they will be free to initiate appropriate steps for cancellation of the illegal connections after issuing notice and after affording reasonable opportunity to explain the position.-(Para 1 6 7 8 14 16 17)     C.K. Abdul Rehim J.1. Exhibit P7 proceedings issued by the 2nd respondent holding that the petitioner's 'household' is not eligible for more than one Domestic L.P.G. connection and advising him to surrender the extra L.P.G. connection which is being held in the household is under challenge. Inter alia the petitioner is seeking to quash Clause 2 (gg) and Clause 3 of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) order 2000 as amended with effect from 10.09.2009 (herein after referred as the 'Regulation Order' for short). The petitioner is also seeking a consequential relief by way of direction commanding the respondents to restore supply of L.P.G. cylinders in his connection with Consumer No. 5111 through the 3rd respondent distributor.2. A Domestic L.P.G. connection with Consumer No.5111 was allotted to the petitioner in the year 1983 at Chennai where he was residing along with his wife and children. In the year 1989 he came back and settled at Kochi and the connection was got transferred to Kochi attached to the 3rd respondent's distributorship. Exhibit P1 subscription voucher and Exhibit P2 receipt evidencing payment of installation charges are produce to substantiate the above facts. The petitioner was enjoying the connection since 1989 by getting supply of L.P.G. cylinders from the 3rd respondent. In the year 2012 the 3rd respondent issued Exhibit P3 notice requiring the petitioner to produce substantial proof to show that there exist more than one 'household' in the address where the gas connection is provided. It was alleged in Exhibit P3 that there are more than one connection of 'Indane' at the address were the petitioner is residing with Consumer No. 5814 and 5111 when one 'household' can have only one connection. On failure to comply with the request all the said connections will be suspended is the notice given.3. In response to Exhibit P3 and complaining about non- supply of L.P.G. cylinders the petitioner submitted Exhibit P4 before the District Collector and also before the Marketing Manager of the 1st respondent Company. In Exhibit P4 he had denied the allegation of having more than one connection. It was specifically pointed out that Clause 3 of the Regulation Order will not apply in his case. According to the petitioner he along with his wife and children are residing in the parental house where his father and mother are also residing along with his brother and brother's family. There is no more than one connection allotted to the petitioner's family is the contention.4. Inspite of submission of Exhibit P4 the supply was not restored which compelled the petitioner to approach this court in WP(C) No. 15019/2012. In Exhibit P5 judgment this court after noticing amendments brought in to the Regulation Order observed that the competent authority has to take a decision in the matter. The Marketing Manager of the 1st respondent Company who was the 2nd respondent in that writ petition was directed to forward Exhibit P4 to the 2nd respondent herein. The 2nd respondent was directed to take a decision with notice to the petitioner within a period of one month considering applicability of the amended Regulation Order.5. On the basis of Exhibit P5 judgment the petitioner submitted Exhibit P6 detailed representation before the 2nd respondent. Referring to the amendments in Clause 2(gg) and Clause 3 of the Regulation Order it was pointed out that those provisions will have only prospective operation and it will not affect rights of the existing customers. It was also contended that Clause 3 will come into play only when one 'household' is having more than one connection under the Public Distribution System (P.D.S.). According to the petitioner his family is holding only one connection and the parents are not dependent upon him.6. Considering Exhibit P6 the 2nd respondent had taken Exhibit P7 decision in compliance with the directions contained in Ext.P5 judgment. Extract of the observations contained in Exhibit P7 are as follows;a. It was ascertained by the team/committee of our officers that the said household has more than one connection being used in the same kitchen in a common household hence it is difficult to entertain the representation of the petitioner that they do not form part of the same household and hence are eligible for a second connection.b. The provision of Liquefied petroleum Gas (Regulation of Supply and Distribution) Order 2000 as amended in 2009 specifically stipulates that in Clause 3 Sub-clause 1 A household having a connection for Liquefied Petroleum Gas under the public distribution system shall not possess more than one connection of liquefied petroleum gas granted under the public distribution systemOn the basis of the above observations it is concluded that the petitioner is not entitled to have more than one domestic connection and he was advised to surrender the extra L.P.G. connection.7. The petitioner is challenging Exhibit P7 on various grounds. Foremost contention is that the 'household' of the petitioner is not having more than one L.P.G. connection. In this regard it is beneficial to refer to relevant provisions in the Regulation Order. By virtue of the amendment brought with effect from 10.09.2009 Sub Clause (gg) was added to Clause 2 defining the term 'household'. It provides that;2(gg) household means a family consisting of husband wife unmarried children and dependent parents living together in a dwelling unit having common kitchen:-Provided that a Liquefied Petroleum Gas connection shall be issued only in the name of any adult member of the household by a Government oil company under the Public Distribution System;By virtue of the same amendment the term person wherever occurring in Clause 3 was substituted by the term household.As such the relevant portion of the amended provisions in Clause 3(1) remains as follows;3. Restriction on unauthorised possession supply and consumption of liquid petroleum gas - (1) A house hold having a connection for liquefied petroleum gas under the public distribution system shall not-(a) Possess more than one connection of liquid petroleum gas granted under the Public Distribution System.Provided that the Central Government or the Chief Executive Officer of a Government oil company may sanction more than one connection of liquid petroleum gas under the public distribution system in favour of any household keeping in view-the difficulty and hardship experienced by such person in obtaining supplies of the LPG;8. In the impugned order the 2nd respondent found that the petitioner's household is not eligible to have more than one domestic connection and advised him to surrender the extra L.P.G. connection. Such a conclusion was arrived on the basis of an inspection conducted by a team of Officers who reported that there is more than one connection being used in the same kitchen in a common household. But specific contention of the petitioner is that his household consists of himself his wife and two children only. According to him his father is a retired Bank employee and the parents are not dependent upon him. Further contention is that in the same residential building the parents are residing along with his brother who has got his own wife and children. There is no other connection in the name of any member of the household of the petitioner is the contention.9. In this context question arises as to whether there can be more than one household residing together in the very same building using a common kitchen. Learned standing counsel appearing for respondents 1 and 2 raised contentions on the question of interpretation of Clause 2(gg). According to him clause 2(gg) has to be interpreted in a manner that any 'household' will not get separate status of 'household' if its members are residing along with other persons in the same dwelling unit and if they share a common kitchen. I am afraid such an interpretation will amount to adding something to the statute which was not intended by the law makers. The unit 'household' as defined under clause 2(gg) means a family consisting of husband wife unmarried children and dependent parents. The remaining part in clause 2(gg) living together in a dwelling unit having common kitchen only qualifies the term 'household'. It can only be interpreted that a family consisting of members mentioned in the first part of the clause will get status of a 'household' only if they are living together in the same dwelling unit and sharing a common kitchen. In other words if members of a family constituting a 'household' are living separately in more than one dwelling unit and if they are not sharing a common kitchen they will not come within the definition of 'household' and the restrictions imposed under clause 3 will not apply to them. To be more clear if members of a family constituting one 'household' are residing in separate dwelling units then the restriction will not apply. For example if the unmarried children or the dependent parents are residing in one dwelling unit and if the husband and wife are residing in another dwelling unit without sharing a common kitchen they will be considered as separate 'households'. Therefore if members of more than one 'household' is living together in the same dwelling unit and if they share a common kitchen they will not be disentitled from having more than one LPG connection based on the prohibitions imposed under clause 3 of the Regulation Order.10. In this regard it is pertinent to note that by virtue of the amendment to clause 3 the concept of 'household' was introduced in the place of 'person'. It is evident that under the unamended provision even members within one 'household' could have separate connections. But restriction has been imposed through the amendment limiting one LPG connection for one household for all its members together provided they are living together in the same dwelling unit by sharing a common kitchen. But the said provision cannot be interpreted in any manner to hold that if more than one 'household' is residing within the same dwelling unit and sharing a common kitchen they are restrained from having more than one connection.11. The definition of 'household' contained in clause 2(gg) which does not suffer from clarity when applied to the facts in the case at hand it cannot be held that the 'household' of the petitioner consisting of himself his wife and children is having more than one connection. The petitioner had specifically denied the allegation that his 'household' is using more than one connection. But in Ext.P7 the finding is to the effect that the petitioner's 'household' is not eligible for more than one domestic connection. This is presumably on the basis that more than one connection is used in the same kitchen in the same dwelling unit. As discussed above if any other connection is provided in the very same dwelling unit or in the common kitchen in the name of any member of another 'household' that will not disentitle the petitioner from enjoying his connection. Therefore I am of the considered opinion that the reasoning mentioned in Ext.P7 is not sustainable.12. Learned counsel for the petitioner had pointed out that even going by the proviso to clause 3 of the Regulation Order there is no absolute prohibition and in cases where the Chief Executive Officer of a Government Oil Company feels that there is any difficulty he can sanction more than one connection of LPG in favour of any 'household'. Of course such power can be exercised by the authority concerned in appropriate cases. Learned Standing Counsel pointed out that in cases where there are different 'households' situated within the same address the consumer should give a declaration that such consumer is using  LPG in separate kitchen. He had placed for my perusal the formof such a declaration supplied through the distributors. But as long as the definition in clause 2(gg) does not qualify 'household' as a family using an exclusive kitchen the prohibition under clause 3 is not applicable in cases where different households are residing within the same address. Therefore any insistence for a declaration to the effect that the consumer's 'household' is using a separate kitchen cannot be sustained.13. Learned Standing Counsel had placed for my consideration two decisions of the Madras High Court wherein writ petitions filed on the issue of having more than one LPG cylinder were dismissed. But none of those decisions have dealt with the provisions contained in the Regulation Order . On facts one of such case is regarding transfer of connection in favour of another person wherein the court observed that since the petitioner and the son are residing in the same premise supply of two cylinders with respect to the same family is not possible. In the other case the court held that husband and wife cannot have one connection each while they are living  under one roof. The decision in both the cases have no bearing in the context of the present case or on the question dealt with herein.14. Learned Standing counsel contended that it is on the basis of an inspection that Ext.P7 decision was taken. A copy of the report of inspection was made available for my perusal. It is alleged that during inspection it was detected that 3 connections are available in the same kitchen one provided by BPCL and two connections from the 1st respondent company. But the report does not enumerate details regarding the names of the subscribers. Even with respect to the 2nd connection from the 1st respondent the subscriber is not the petitioner but is only his father. Merely because 3 connections were detected in the same dwelling unit or in the common kitchen the petitioner cannot be blamed of having more than one connection with respect to his 'household'.15. In view of the findings as above learned counsel for the petitioner conceded that challenges raised against validity of clause 2(gg) and clause 3 of the Regulation Order or the contentions raised on the basis that the amendments are only prospective are not pressed for consideration.16. Under the above mentioned circumstances the writ petition is allowed and Ext.P7 is hereby quashed. Respondents 1 to 3 are directed to continue supply of LPG cylinders to the petitioner in his domestic connection with consumer No.5111 as and when requested subject to priority and availability.17. It is made clear that if at any time it is found by respondents 1 to 3 that the petitioner's 'household' is having more than one domestic LPG connection under the public distribution system or that any person holding another connection under the public distribution system who is residing in the same dwelling unit and sharing common kitchen is a member of the 'household' of the petitioner or that any other 'household' residing in same dwelling unit and sharing the common kitchen is having more than one connection under the PDS they will be free to initiate appropriate steps for cancellation of the illegal connections after issuing notice and after affording reasonable opportunity to explain the position.