Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 2101 OF 2000
Bhimrao Eknath Borkar,
aged about 32 years, Occ. Fair Price
Shop Keeper, R/o. Pipriya, Tah. Tirora,
Distt. Gondia (Old Distt. Bhandara) …... PETITIONER
...VERSUS...
1. Jitendra Bhojraj Lilhare,
aged about 22 years, Occ. Agriculturist,
R/o. Pipriya, Tah. Tirora,
Distt. Gondia (Old Distt. Bhandara).
2. The Commissioner, Nagpur.
3. The Sub Divisional Officer, Gondia,
4. The State of Mah. Through its Secretary,
Food, Civil Supply and Consumer Protection
Department, Mantralayta, Mumbai …... RESPONDENTS
Shri V.R.Borkar, counsel for Petitioner.
None for respondent No.1
Shri V.P.Maldhure, AGP for Respondent nos. 2 to 4
CORAM: R. K. DESHPANDE, AND
Mrs. SWAPNA JOSHI, JJ.
th
DATE : 7 JUNE, 2017 .
(per Deshpande, J.)
ORAL JUDGMENT
1] The petitioner was allotted fair price shop, as his
name appeared in the priority list as a candidate belonging to
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Scheduled Caste Category under Clause 3A (1) (B) of the
Maharashtra Scheduled Commodities (Regulation of
Distribution) Order, 1975, (in short "the said Order of 1975)
by the order passed by the Additional Collector, Gondia, on
25.10.1999. This was challenged by the respondent No.1
before the Commissioner (Supply), Nagpur Division, Nagpur,
in Revision under clause 24 of the said Order, which was
registered as R.P.No. 58/19992000. On 24.05.2000, the
Deputy Commissioner (Supply) who dealt with the Revision,
set aside the order passed by the Additional Collector and
directed that the respondent No.1 – Jitendra Bhojraj Lilhare,
belonging to 'Educated Unemployed' category, having
priority over the 'Scheduled Caste' as per the priority list
contained in the Government Resolution dated 20.03.1999,
was entitled to allotment of fair price shop. The order directed
the Sub Divisional Officer to take appropriate steps in the
matter and accordingly, the Sub Divisional Officer passed an
order on 03.06.2000 in favour of the respondent No.1.
2] The petitioner has preferred this writ petition,
challenging the order dated 24.05.2000 passed by the
Deputy Commissioner, the order dated 03.06.2000 passed
by the Sub Divisional Officer, Gondia, along with the
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Government Resolution dated 20.03.1999, which has been
acted upon by the Deputy Commissioner to decide the
entitlement of respondent No.1.
3] Shri Borkar, the learned counsel for the
petitioner has urged before us that in the Maharashtra
Scheduled Commodities (Regulation of Distribution) Order,
1975, there is no priority given to the 'Educated Unemployed'
person belonging to caste or tribe other than Scheduled
Caste or Scheduled Tribes over the persons belonging to
Scheduled Caste or Scheduled Tribe for issuing the
authorization to the ration shops. He submits that the
petitioner belongs to Scheduled Caste category, which is
given priority at Sr.No.4 in clause (3A) (1) (B) of other areas.
In normal circumstances, the petitioner would get allotment
being a candidate of Scheduled Caste category.
4] Shri Borkar, the learned counsel for the
petitioner, does not dispute that such a priority is changed by
the State Government by issuing Government Resolution
dated 20.03.1999 (in short "the said Government Resolution),
in terms of which respondent No.1 was entitled to priority as
a person belonging to 'Educated Unemployed' category over
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the persons belonging to Scheduled Caste and Scheduled
Tribe category. It is the contention of Shri Borkar that by
issuing the said Government Resolution, the priority
prescribed under Clause (3A) of the said Order of 1975
cannot be changed. He submits that if the priority is required
to be changed, then the said Order of 1975 is required to be
amended in accordance with the procedure prescribed for
that purpose and the Government Resolution contrary to the
said Order cannot be given effect for the purposes of
allotment of fair price shop to the respondent No.1.
5] Shri Borkar, the learned counsel further submits
that assuming for the sake of argument that the Deputy
Commissioner did not commit an error in relying the said
Government Resolution to consider the priority, the case of
the respondent No.1 was required to be further examined on
the basis of several conditions prescribed in the said
Government Resolution; one of which being that the
educated unemployed person proposed for allotment should
not have obtained the benefit meant for such persons under
the scheme framed either by the State Government or the
Central Government. He has invited our attention to the
specific ground of challenge raised on page No.7 of the
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petition to the effect that the respondent No.1 has about an
year back, obtained a loan of Rs.1,00,000/ for running the
shop of kirana goods under the scheme of 'Educated
Unemployed' from the Prime Minister funds through Bank of
India, Paraswada, Tq. Tiroda, Distt. Gondia.
6] After going through the order passed in Revision,
we find that except the question of inconsistency between the
provisions of the said Order of 1975 and the said
Government Resolution, no other point has been dealt with
and therefore, we would concentrate our attention for the
decision of said point. As per the order passed in Revision,
the priority altered by the said Government Resolution has
been relied upon and the claim of the respondent No.1 as
belonging to the category of 'Educated Unemployed' has
been preferred over the petitioner who belongs to Scheduled
Caste category. Normally, the altered priority by the said
Government Resolution would not have precedence over the
priorities mentioned in the said Order of 1975 and in case of
conflict between two, there would be no hesitation to accept
the contention of Shri Borkar that the altered priority cannot
be acted upon in the face of statutory provision contained in
the said Order of 1975.
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7] With the assistance of the learned counsels
appearing for the parties, we have gone through the
provisions of Subsections (1) and (2) of Section 3 and
Section 5 of the Essential Commodities Act, 1955. The said
Order of 1975 has been issued by the Food and Civil
Supplies Department of the State Government under
Section 3 of the Essential Commodities Act, in exercise of its
power delegated by the Central Government under Section 5
of the said Act by issuing notification dated 09.06.1978 which
is placed on record as AnnexureE to the petition. Relying
upon this delegation of powers, Shri Maldhure, the learned
AGP appearing for Respondent Nos. 2 to 4 has urged that
the said Order of 1975 has been issued by the State
Government and it recites that it has been issued with prior
concurrence of the Central Government.
8] Perusal of the Order of delegation dated
09.06.1978 reveals that the State Government is not required
to obtain the concurrence from the Central Government for
issuing order under
regulating licenses and permits
Clause (d) of SubSection (2) of Section 3 of the said Act.
The requirement of obtaining of prior concurrence is in
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respect of distribution or disposal of foodstuffs to places
outside the State or in regard to regulation of transport
of any foodstuff as stipulated under clause (d) . It is after
issuance of this power of delegation on 09.06.1978, that the
provision of Clause (3A) prescribing the order of priority to
be followed in issuing authorization to ration shops was
introduced in the said Order of 1975 by way of amendment
effected on 20.01.1992. Shri Borkar is unable to point out any
provision under the said Act requiring obtaining of prior
concurrence of the Central Government for altering the
priority for grant of or regulating the licenses and permits as
stipulated under Clause (d) of subsection (2) of Section 3 of
the said Act.
9] In view of the aforesaid position, though we find
that there is a conflict in between the priority mentioned in
clause (3A) of the said Order of 1975 and in the priority
mentioned in the said Government Resolution, the State
Government was competent to alter such priority without
obtaining prior concurrence of the Central Government in
terms of the Order of delegation dated 09.06.1978. We,
therefore, reject the contention of Shri Borkar that the State
Government was not competent to alter the priority by
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issuing the said Government Resolution.
10] As pointed out earlier, Shri Borkar, the learned
counsel appearing for the petitioner, invited out attention to
the question of eligibility of the respondent No.1 to get an
order of allotment, particularly when the allegation is that
respondent No.1 has availed the benefit under one of the
schemes promulgated by the Central Government for
'Educated Unemployed' persons. This aspect has not been
dealt with by the Revisional Authority. Obviously, the case
was not tested on the other aspects of the matter. The
eligibility of the respondent No.1 is required to be judged on
the basis of the terms and conditions stipulated in the
Government Resolution dated 20.03.1999; more particularly
clause (3) in Condition No. 4 of the said Government
Resolution.
11] Consequently, the order impugned passed in
Revision and consequently the order passed by the Sub
Divisional Officer, both will have to be, therefore, quashed
and set aside with an order of remand of the matter back to
the Deputy Commissioner (Supply), Nagpur Division,
Nagpur, for considering the question of eligibility of
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respondent No.1 for allotment of such fair price shop. The
parties shall be at liberty to raise all such points as are
available. The respondent No.1 can also raise the points in
defence and after hearing the parties, the Deputy
Commissioner (Supply) shall decide the matter.
12] In the result, the order dated 24.05.2000 passed
in Revision R.P.No. 58/19992000 is hereby quashed and set
aside alongwith the order dated 03.06.2000 passed by the
Sub Divisional Officer, Gondia. The matter is remitted back
to the Deputy Commissioner (Supply), Nagpur Division,
Nagpur, for decision in accordance with law, keeping in view
the observations made by this Court.
As a result of setting aside the order passed in
Revision, the order passed by the Additional Collector
continues to operate. The petitioner was protected by way of
an interim order passed by this Court, as a result he
continues to run the fair price shop. This position shall
continue to operate pending the decision of the Revision
before the Deputy Commissioner. The Deputy
Commissioner (Supply), Nagpur Division, Nagpur, shall
decide the matter within a period of six months from the date
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of first appearance of the parties before it.
Rule is made absolute in above terms. No order
as to costs.
JUDGE JUDGE
Rvjalit
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 2101 OF 2000
Bhimrao Eknath Borkar,
aged about 32 years, Occ. Fair Price
Shop Keeper, R/o. Pipriya, Tah. Tirora,
Distt. Gondia (Old Distt. Bhandara) …... PETITIONER
...VERSUS...
1. Jitendra Bhojraj Lilhare,
aged about 22 years, Occ. Agriculturist,
R/o. Pipriya, Tah. Tirora,
Distt. Gondia (Old Distt. Bhandara).
2. The Commissioner, Nagpur.
3. The Sub Divisional Officer, Gondia,
4. The State of Mah. Through its Secretary,
Food, Civil Supply and Consumer Protection
Department, Mantralayta, Mumbai …... RESPONDENTS
Shri V.R.Borkar, counsel for Petitioner.
None for respondent No.1
Shri V.P.Maldhure, AGP for Respondent nos. 2 to 4
CORAM: R. K. DESHPANDE, AND
Mrs. SWAPNA JOSHI, JJ.
th
DATE : 7 JUNE, 2017 .
(per Deshpande, J.)
ORAL JUDGMENT
1] The petitioner was allotted fair price shop, as his
name appeared in the priority list as a candidate belonging to
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Scheduled Caste Category under Clause 3A (1) (B) of the
Maharashtra Scheduled Commodities (Regulation of
Distribution) Order, 1975, (in short "the said Order of 1975)
by the order passed by the Additional Collector, Gondia, on
25.10.1999. This was challenged by the respondent No.1
before the Commissioner (Supply), Nagpur Division, Nagpur,
in Revision under clause 24 of the said Order, which was
registered as R.P.No. 58/19992000. On 24.05.2000, the
Deputy Commissioner (Supply) who dealt with the Revision,
set aside the order passed by the Additional Collector and
directed that the respondent No.1 – Jitendra Bhojraj Lilhare,
belonging to 'Educated Unemployed' category, having
priority over the 'Scheduled Caste' as per the priority list
contained in the Government Resolution dated 20.03.1999,
was entitled to allotment of fair price shop. The order directed
the Sub Divisional Officer to take appropriate steps in the
matter and accordingly, the Sub Divisional Officer passed an
order on 03.06.2000 in favour of the respondent No.1.
2] The petitioner has preferred this writ petition,
challenging the order dated 24.05.2000 passed by the
Deputy Commissioner, the order dated 03.06.2000 passed
by the Sub Divisional Officer, Gondia, along with the
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Government Resolution dated 20.03.1999, which has been
acted upon by the Deputy Commissioner to decide the
entitlement of respondent No.1.
3] Shri Borkar, the learned counsel for the
petitioner has urged before us that in the Maharashtra
Scheduled Commodities (Regulation of Distribution) Order,
1975, there is no priority given to the 'Educated Unemployed'
person belonging to caste or tribe other than Scheduled
Caste or Scheduled Tribes over the persons belonging to
Scheduled Caste or Scheduled Tribe for issuing the
authorization to the ration shops. He submits that the
petitioner belongs to Scheduled Caste category, which is
given priority at Sr.No.4 in clause (3A) (1) (B) of other areas.
In normal circumstances, the petitioner would get allotment
being a candidate of Scheduled Caste category.
4] Shri Borkar, the learned counsel for the
petitioner, does not dispute that such a priority is changed by
the State Government by issuing Government Resolution
dated 20.03.1999 (in short "the said Government Resolution),
in terms of which respondent No.1 was entitled to priority as
a person belonging to 'Educated Unemployed' category over
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the persons belonging to Scheduled Caste and Scheduled
Tribe category. It is the contention of Shri Borkar that by
issuing the said Government Resolution, the priority
prescribed under Clause (3A) of the said Order of 1975
cannot be changed. He submits that if the priority is required
to be changed, then the said Order of 1975 is required to be
amended in accordance with the procedure prescribed for
that purpose and the Government Resolution contrary to the
said Order cannot be given effect for the purposes of
allotment of fair price shop to the respondent No.1.
5] Shri Borkar, the learned counsel further submits
that assuming for the sake of argument that the Deputy
Commissioner did not commit an error in relying the said
Government Resolution to consider the priority, the case of
the respondent No.1 was required to be further examined on
the basis of several conditions prescribed in the said
Government Resolution; one of which being that the
educated unemployed person proposed for allotment should
not have obtained the benefit meant for such persons under
the scheme framed either by the State Government or the
Central Government. He has invited our attention to the
specific ground of challenge raised on page No.7 of the
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petition to the effect that the respondent No.1 has about an
year back, obtained a loan of Rs.1,00,000/ for running the
shop of kirana goods under the scheme of 'Educated
Unemployed' from the Prime Minister funds through Bank of
India, Paraswada, Tq. Tiroda, Distt. Gondia.
6] After going through the order passed in Revision,
we find that except the question of inconsistency between the
provisions of the said Order of 1975 and the said
Government Resolution, no other point has been dealt with
and therefore, we would concentrate our attention for the
decision of said point. As per the order passed in Revision,
the priority altered by the said Government Resolution has
been relied upon and the claim of the respondent No.1 as
belonging to the category of 'Educated Unemployed' has
been preferred over the petitioner who belongs to Scheduled
Caste category. Normally, the altered priority by the said
Government Resolution would not have precedence over the
priorities mentioned in the said Order of 1975 and in case of
conflict between two, there would be no hesitation to accept
the contention of Shri Borkar that the altered priority cannot
be acted upon in the face of statutory provision contained in
the said Order of 1975.
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7] With the assistance of the learned counsels
appearing for the parties, we have gone through the
provisions of Subsections (1) and (2) of Section 3 and
Section 5 of the Essential Commodities Act, 1955. The said
Order of 1975 has been issued by the Food and Civil
Supplies Department of the State Government under
Section 3 of the Essential Commodities Act, in exercise of its
power delegated by the Central Government under Section 5
of the said Act by issuing notification dated 09.06.1978 which
is placed on record as AnnexureE to the petition. Relying
upon this delegation of powers, Shri Maldhure, the learned
AGP appearing for Respondent Nos. 2 to 4 has urged that
the said Order of 1975 has been issued by the State
Government and it recites that it has been issued with prior
concurrence of the Central Government.
8] Perusal of the Order of delegation dated
09.06.1978 reveals that the State Government is not required
to obtain the concurrence from the Central Government for
issuing order under
regulating licenses and permits
Clause (d) of SubSection (2) of Section 3 of the said Act.
The requirement of obtaining of prior concurrence is in
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respect of distribution or disposal of foodstuffs to places
outside the State or in regard to regulation of transport
of any foodstuff as stipulated under clause (d) . It is after
issuance of this power of delegation on 09.06.1978, that the
provision of Clause (3A) prescribing the order of priority to
be followed in issuing authorization to ration shops was
introduced in the said Order of 1975 by way of amendment
effected on 20.01.1992. Shri Borkar is unable to point out any
provision under the said Act requiring obtaining of prior
concurrence of the Central Government for altering the
priority for grant of or regulating the licenses and permits as
stipulated under Clause (d) of subsection (2) of Section 3 of
the said Act.
9] In view of the aforesaid position, though we find
that there is a conflict in between the priority mentioned in
clause (3A) of the said Order of 1975 and in the priority
mentioned in the said Government Resolution, the State
Government was competent to alter such priority without
obtaining prior concurrence of the Central Government in
terms of the Order of delegation dated 09.06.1978. We,
therefore, reject the contention of Shri Borkar that the State
Government was not competent to alter the priority by
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issuing the said Government Resolution.
10] As pointed out earlier, Shri Borkar, the learned
counsel appearing for the petitioner, invited out attention to
the question of eligibility of the respondent No.1 to get an
order of allotment, particularly when the allegation is that
respondent No.1 has availed the benefit under one of the
schemes promulgated by the Central Government for
'Educated Unemployed' persons. This aspect has not been
dealt with by the Revisional Authority. Obviously, the case
was not tested on the other aspects of the matter. The
eligibility of the respondent No.1 is required to be judged on
the basis of the terms and conditions stipulated in the
Government Resolution dated 20.03.1999; more particularly
clause (3) in Condition No. 4 of the said Government
Resolution.
11] Consequently, the order impugned passed in
Revision and consequently the order passed by the Sub
Divisional Officer, both will have to be, therefore, quashed
and set aside with an order of remand of the matter back to
the Deputy Commissioner (Supply), Nagpur Division,
Nagpur, for considering the question of eligibility of
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respondent No.1 for allotment of such fair price shop. The
parties shall be at liberty to raise all such points as are
available. The respondent No.1 can also raise the points in
defence and after hearing the parties, the Deputy
Commissioner (Supply) shall decide the matter.
12] In the result, the order dated 24.05.2000 passed
in Revision R.P.No. 58/19992000 is hereby quashed and set
aside alongwith the order dated 03.06.2000 passed by the
Sub Divisional Officer, Gondia. The matter is remitted back
to the Deputy Commissioner (Supply), Nagpur Division,
Nagpur, for decision in accordance with law, keeping in view
the observations made by this Court.
As a result of setting aside the order passed in
Revision, the order passed by the Additional Collector
continues to operate. The petitioner was protected by way of
an interim order passed by this Court, as a result he
continues to run the fair price shop. This position shall
continue to operate pending the decision of the Revision
before the Deputy Commissioner. The Deputy
Commissioner (Supply), Nagpur Division, Nagpur, shall
decide the matter within a period of six months from the date
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of first appearance of the parties before it.
Rule is made absolute in above terms. No order
as to costs.
JUDGE JUDGE
Rvjalit
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