Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4983 OF 2012
Balbhim s/o Sukhdeo Limbkar,
Age adult, Occ. Agriculture,
R/o. Khasgaon, Tq. Paranda,
District Osmanabad ...Petitioner
Versus
1. The State of Maharashtra
Through the Secretary to the
Department of Food, Civil Supply and
Consumer Protection,
Maharashtra State
Mantralaya, Mumbai-32
2. The Divisional Commissioner (Supply)
Aurangabad Division, Aurangabad
3. District Supply Officer,
Osmanabad
4. Smt. Manisha w/o Nagesh Shinde,
Age adult, Occ. Business,
R/o. Khasgaon, Tq. Paranda,
District Osmanabad ...Respondents
.....
Mr. Y.S. Choudhari, advocate for the petitioner
Mr. D.R. Kale, A.G.P. for respondent Nos. 1 to 3
Mrs. M.A. Kulkarni, advocate for respondent No. 4.
.....
CORAM : S. S. SHINDE, J.
DATE OF RESERVING
THE JUDGMENT : 17.01.2013
DATE OF PRONOUNCING
THE JUDGMENT : 31.01.2013
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JUDGMENT :-
1. Heard learned counsel for the respective parties.
2. Rule. Rule made returnable forthwith. By consent, heard finally.
3. This writ petition takes exception to the judgment and order
dated 18.4.2012, passed by the Minister of Food, Civil Supply and
Consumer Protection Department, Mantralaya, Mumbai, in Revision
No. VAM-1011/C.N. 108/CS-21 dated 18.4.2012.
4. It is the case of the petitioner that the petitioner made complaint
against the respondent No.4. According to the complaint of the
petitioner, the Tahsildar (Supply) from 16.7.2010 to 21.7.2010 made
enquiry about the fair price shop of respondent No.4 and found serious
illegalities and irregularities committed by respondent No.4. On
31.8.2010, respondent No.4 was given a show cause notice. It is the
case of the petitioner that after hearing both the parties, District Supply
Officer, Osmanabad by order dated 9.9.2010, cancelled the licence of
the fair price shop of respondent No.4 as well as confiscated the
deposit amount of Rs.1000/-. The District Supply Officer also made
complaint to the police station, Paranda and accordingly F.I.R. No. 19
of 2010 was registered against present respondent No.4. Respondent
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No.4, being aggrieved by the order passed by the District Supply
Officer, Osmanabad filed an appeal No. 284 of 2010 before the Deputy
Commissioner (Civil Supply), Aurangabad. The petitioner was not
made party to the said appeal. He filed intervention application as he is
original complainant.
The Deputy Commissioner, Aurangabad, after hearing the
parties as well as the petitioner intervener, by his judgment and order
dated 7.1.2011 rejected the appeal preferred by respondent No.4. The
respondent No.4 herein being aggrieved by the judgment and order of
the Divisional Commissioner, Aurangabad preferred revision before
the Minister of Food, Civil Supply and Consumer Protection,
Mantralaya, Mumbai. The Minister allowed the revision filed by the
respondent No.4. The petitioner being aggrieved and dissatisfied by
the judgment and order passed by the Minister, had filed writ petition
No. 6401 of 2011. This Court, after hearing the parties, remitted the
matter back to the Minister for reconsideration. The petitioner herein
appeared before the Minister and filed his detail reply to the revision
filed by respondent No.4. After hearing the parties, the Minister
allowed revision application filed by respondent No.4. Hence, this writ
petition.
5. Learned counsel appearing for the petitioner submits that the
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judgment and order passed by the revisional authority is enlarging the
scope of the revision. It is submitted that the Tahsildar made detail
enquiry and found that many irregularities and illegalities are
committed by respondent No.4, thereby violating the conditions for
running the fair price shop and therefore, licence to run the fair price
shop of respondent No.4 was cancelled. It is submitted that
respondent No.2 while rejecting the appeal filed by respondent No.4
found that respondent No.4 has committed serious irregularities,
inasmuch as she prepared a list of bogus card holders and committed
misappropriation for an amount of Rs.33,155/-. It is submitted that the
enquiry report submitted by the Tahsildar was accepted by the District
Supply Officer. Respondent No.4 was given proper opportunity and
thereafter the District Supply Officer rejected the contention of
respondent No.4. The Deputy Commissioner (Supply), Aurangabad
Region, Aurangabad has also confirmed the findings recorded by the
District Supply Officer. Therefore, according to the learned counsel
appearing for the petitioner, there was no reason for the Minister to
interfere in the findings/reasons recorded by the District Supply Officer
as well as the Deputy Commissioner (Supply), Aurangabad Region,
Aurangabad. It is submitted that, scope of revision before the Minister
is very limited. Unless it is found that the findings/reasons recorded by
the authorities below are baseless or totally perverse, no revision can
be entertained. It is submitted that respondent No.4 did prepare bogus
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list of B.P.L. (below poverty line) card holders and also other
beneficiaries and committed serious irregularities and illegalities,
therefore, the Minister should not have interfered in the decision of the
District Supply Officer and also the Commissioner. It is submitted that
the criminal case filed against respondent No.4 is pending
investigation, therefore, the Minister should not have shown any
indulgence in the matter by allowing the revision filed by respondent
No.4. Therefore, learned counsel relying upon the pleadings in the
petition, grounds taken therein, report of the Tahsildar, the findings
recorded by the District Supply Officer as well as the Divisional
Commissioner would submit that this writ petition deserves to be
allowed.
6. On the other hand, learned counsel appearing for respondent
No.4 invited my attention to the contents of the affidavit in reply and
submitted that the Minister has considered all aspects of the matter
and allowed the revision filed by respondent No.4. It is submitted that
criminal case filed against respondent No.4 is pending investigation
and there is no any reason as to why respondent No.4 should be
prevented from running the fair price shop and sale of kerosene. It is
submitted that the order passed by the Minister has already been
acted upon and therefore, the petition has become infructuous.
Learned counsel relied upon the reasons recorded by the revisional
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authority and submitted that this petition deserves to be rejected.
7. Learned A.G.P. appearing for respondent Nos. 1 to 3 submitted
that the judgment and order passed by the Minister is after hearing the
parties and the said order is subject to the outcome of the criminal
proceeding pending against respondent No.4.
8. I have given careful consideration to the rival submissions
advanced by the counsel for the parties. I have perused the contents
of the complaint filed by the petitioner before the District Collector,
Osmanabad. It appears that serious contentions are raised in the
complaint that the respondent No.4 has indulged in illegal activities of
preparing the list of bogus beneficiaries and lifting the food grains and
selling the same in the open market. The contents of the complaint
also disclose that, though the respondent No.4 on record has shown
distribution of food grains, there was no actual distribution of the food
grains/kerosene to the persons covered under B.P.L. Scheme and
also under other schemes of the government like Antyodaya and
Annapurna etc.
9. Upon careful perusal of Exh. B at page 17 of the compilation of
writ petition, it appears that Naib Tahsildar (Supply) Paranda has
inquired and inspected the fair price shop run by respondent No.4 and
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found that the licence is misused by respondent No.4 for self gain, the
schemes sponsored by the Government are not properly implemented,
bogus record is prepared, respondent No.4 has not made available
entire record of fair price shop for perusal to the inspecting squad, the
preparation of bogus receipts of allotment of food grains to the
persons, who are residing in other villages and thereby respondent No.
4 has gained Rs.33,155.60 Ps., the respondent No.4 has no any
courtesy with the card holders, registration of offence against
respondent No.4 under the provisions of Essential Commodities Act
being crime No. 19 of 2010 with Paranda police station etc. It appears
that show cause notice was given on 31.8.2010 to respondent No.4
and in pursuance to the said show cause notice reply was also filed by
respondent No.4 denying the contents of show cause notice. It
appears that the District Supply Officer after satisfying himself and
after perusal of the report of the Tahsildar, Paranda and reply filed by
respondent No.4, recorded his satisfaction that there are serious
irregularities and illegalities committed by respondent No.4 in running
the fair price shop and also offence is registered against respondent
No.4 with Paranda police station, cancelled the licence and also
forfeited the amount of deposit of Rs.1000/-.
10. Upon careful perusal of the judgment of the Deputy
Commissioner (Supply) Aurangabad Division, Aurangabad, it appears
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that the said authority has seen all the documents produced on record
and the record summoned from the office of District Supply Officer,
para wise comments, evidence produced on record by the authorities
through advocates and after hearing the parties, rejected the appeal
filed by the petitioner. The said authority has noticed that the
respondent No.4 has not produced the record of fair price shop
alongwith the appeal. The authorities has also taken a note of the fact
that the offence is registered against respondent No.4 and further the
charges levelled against her are serious in nature. Upon perusal of
reply to the show cause notice, the authority has noticed that the
respondent No.4 has not replied to all charges. The authorities have
also noted that the file summoned from the office of the District Supply
Officer does disclose the statement of beneficiaries, panchnama etc.
Therefore, it follows from the discussion in the said judgment that the
Deputy Commissioner (Supply) has meticulously considered the
material placed on record and also record/file summoned from the
office of the District Supply Officer and rejected the appeal filed by
respondent No.4 herein.
11. It appears that the decision of the Deputy Commissioner
(Supply), Aurangabad was challenged before the Minister in Revision
No. VAM-1011/C.N.108/CS-21 preferred by respondent No.4 which
was decided on 20.7.2011 by the Minister of Food, Civil Supply and
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Consumer Protection, Mantralaya, Mumbai. Even while deciding the
said revision, it clearly appears that the Minister had taken a note of
the fact that the offence is registered against respondent No.4 with
Paranda police station and also recorded that upon hearing the parties
and upon perusal of the documents produced on record, the
irregularities are committed by respondent No.4 while running fair price
shop and therefore, it is necessary to impose fine of Rs.5000/- upon
respondent No.4 and accordingly the Minister had partly allowed the
revision filed by respondent No.4 by imposing fine of Rs.5000/- for
committing irregularities.
12. The petitioner herein did file writ petition No. 6401 of 2011 with a
grievance that the revision is decided by the Minister without serving
notice of hearing on the petitioner, who is original complainant.
Therefore, this Court allowed the writ petition by setting aside the
judgment and order of the Minister dated 20.7.2011 and remitted the
matter back to the revisional authority.
13. Upon careful perusal of the judgment and order passed by the
Minister i.e. Revisional authority, in second round, it appears that in
the title cause of the revision, the petitioner herein is wrongly shown as
applicant, in fact the revision application is filed by respondent No.4.
From perusal of the operative part of the order, it further appears that
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clause 1 mentions that the revision filed by the petitioner herein has
been rejected. It appears that as stated by the petitioner in para 1 of
the writ petition, the petitioner is wrongly shown as revision applicant in
the said revision. By way of impugned order, the Minister upheld the
judgment and order dated 20.7.2011 in Revision No. VAM-1011/C.N.
108/CS-21 filed by respondent No.4 herein. Therefore, the findings
recorded by the Minister in his judgment and order dated 20.7.2011
that the respondent No.4 has committed irregularities and therefore,
she is liable to pay fine of Rs.5000/- are intact. From careful perusal of
the judgment of the Minister, it is abundantly clear that there are no
any findings or observations recorded by the said authority
disbelieving the enquiry report of the Tahsildar, which was
subsequently accepted by the District Supply Officer. The Minister
has accepted and observed that, there are certain deficiencies and
irregularities found during inspection of the shop run by the respondent
No.4, and rightly imposed fine of Rs.5000/-. However, it is beyond
comprehension to understand that after recording the said findings and
after taking a note of the fact that, the offence is registered against
respondent No.4 with Paranda police station under the provisions of
Essential Commodities Act, the Minister proceeded to partly allow the
revision filed by respondent No.4, ignoring that there is overwhelming
material available on record, and on the basis of said material/
evidence, Naib Tahsildar, made a report to the District Supply Officer
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and the District Supply Officer, after giving show cause notice to
respondent No.4 and after recording his satisfaction that, the licence of
respondent No.4 is required to be cancelled, has cancelled the licence.
The first revision filed by respondent No.4 is also rejected by the
Deputy Commissioner (supply) by giving cogent and sufficient reasons
based upon the material placed on record and also after giving proper
opportunity to all concerned. At this juncture, it would be relevant to
reproduce herein below the object of Essential Commodities Act :-
“The object of the Essential Commodities Act is to provide, in
the interests of the general public, for control of production,
supply and distribution of trade and commerce in commodities
which are specified in the Act to be essential commodities. The
power of search and seizure are incidental and supplementary
to other powers which are necessary to secure the objects for
which the Essential Commodities Act has been passed.
The very object of the Essential Commodities Act is to
check the inflationary trends in prices and to ensure equitable
distribution of essential commodities.”
14. Therefore, taking over all view of the matter, in my considered
opinion, the Minister of Food, Civil Supply and Consumer Protection,
Mantralaya, Mumbai, while entertaining the revision filed by the
respondent No.4 has acted beyond the scope of revision and partly
allowed the revision. In fact, when the Minister himself observed that
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respondent No.4 has committed irregularities while running fair price
shop and imposed a fine of Rs.5000/- on respondent No.4, there was
no reason for the Minister to proceed further and partly allow the
revision filed by respondent No.4.
15. This court in the case of Shivaji Tulshiram Thakre vs. State of
Maharashtra and ors. Reported in 2012 (3) ALL M.R. 789 has
considered the scope of revision by the revisional authority and in the
facts of that case, has taken a view that when the Minister confirmed
the findings that the charges have been established against the
licence holder and imposed fine of Rs.5000/- in that case, there was
no question of restoration of licence and such action/direction of the
Minister was beyond scope of review under clause 24(2) of the
Maharashtra Schedule Commodities (Regulation of Distribution) Order
(1975). This court in the case of Shivaji Tulshiram Thakre (Supra) in
para 9, held thus:-
“9. Now coming to the merits of the matter, in the order
dated 31-8-2009 passed by the Minister, which has been reviewed,
the finding was recorded that the charges of misappropriation have
been established and taking into consideration all the aspects, it was
held that respondent No.4 had violated the terms and conditions of
the fair price shop licence. In review, the finding that the charges
have been established against respondent No.4 has been
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confirmed. It is only on humanitarian ground that one more
opportunity was given to respondent No.4 to pay the amount, which
he had misappropriated, along with fine of Rs.5,000/- as a condition
for restoration of the licence. Such is not the scope of review under
clause 24(2) of the said Order. The order impugned changes the
view which was earlier taken on re-hearing of the matter. The view
taken earlier being a possible view of the matter, no interference
was called for in the jurisdiction of review under clause 24(2) of the
said Order. The order passed by the Minister, impugned in this
petition, cannot, therefore, be sustained.”
16. Therefore, taking over all view of the matter, in my considered
opinion, the impugned judgment and order dated 18.4.2012, passed
by the Minister, Food, Civil Supply and Consumer Protection in
Revision Application No. VAM-1011/C.N. 108/CS-21 cannot be
sustained in law and the same is therefore, quashed and set aside.
The order dated 9.9.2010, passed by the District Supply Officer,
Osmanabad cancelling the licence of respondent No.4 to run the fair
price shop, which is confirmed by the Deputy Commissioner (Supply)
Aurangabad Division, Aurangabad on 7.1.2011, stands upheld and
confirmed. As a result, restoration of licence/shop in favour of the
respondent No.4 stands cancelled. The concerned authorities are
directed not to allot quota of food grains or kerosene to respondent No.
4. The concerned authorities of the State Government shall issue
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fresh proclamation for allotment of shop in village Khasgaon, Tq.
Paranda, District Osmanabad in accordance with law and the
Government policies/relevant Government Resolutions/Rules etc. It is
made clear that such allotment should be strictly in accordance with
the government policies, framed from time to time, in that behalf.
17. Rule made absolute in the above terms. The petition is allowed
to the above extent and stands disposed of.
18. Learned counsel appearing for respondent No.4 makes an oral
prayer that effect and implementation of this judgment may be stayed
for two weeks to enable the said respondent to file appropriate
proceeding. The prayer is opposed by the counsel appearing for the
petitioner. However, in the interest of justice, the effect, operation and
implementation of this judgment is stayed for two weeks from today.
*
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4983 OF 2012
Balbhim s/o Sukhdeo Limbkar,
Age adult, Occ. Agriculture,
R/o. Khasgaon, Tq. Paranda,
District Osmanabad ...Petitioner
Versus
1. The State of Maharashtra
Through the Secretary to the
Department of Food, Civil Supply and
Consumer Protection,
Maharashtra State
Mantralaya, Mumbai-32
2. The Divisional Commissioner (Supply)
Aurangabad Division, Aurangabad
3. District Supply Officer,
Osmanabad
4. Smt. Manisha w/o Nagesh Shinde,
Age adult, Occ. Business,
R/o. Khasgaon, Tq. Paranda,
District Osmanabad ...Respondents
.....
Mr. Y.S. Choudhari, advocate for the petitioner
Mr. D.R. Kale, A.G.P. for respondent Nos. 1 to 3
Mrs. M.A. Kulkarni, advocate for respondent No. 4.
.....
CORAM : S. S. SHINDE, J.
DATE OF RESERVING
THE JUDGMENT : 17.01.2013
DATE OF PRONOUNCING
THE JUDGMENT : 31.01.2013
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JUDGMENT :-
1. Heard learned counsel for the respective parties.
2. Rule. Rule made returnable forthwith. By consent, heard finally.
3. This writ petition takes exception to the judgment and order
dated 18.4.2012, passed by the Minister of Food, Civil Supply and
Consumer Protection Department, Mantralaya, Mumbai, in Revision
No. VAM-1011/C.N. 108/CS-21 dated 18.4.2012.
4. It is the case of the petitioner that the petitioner made complaint
against the respondent No.4. According to the complaint of the
petitioner, the Tahsildar (Supply) from 16.7.2010 to 21.7.2010 made
enquiry about the fair price shop of respondent No.4 and found serious
illegalities and irregularities committed by respondent No.4. On
31.8.2010, respondent No.4 was given a show cause notice. It is the
case of the petitioner that after hearing both the parties, District Supply
Officer, Osmanabad by order dated 9.9.2010, cancelled the licence of
the fair price shop of respondent No.4 as well as confiscated the
deposit amount of Rs.1000/-. The District Supply Officer also made
complaint to the police station, Paranda and accordingly F.I.R. No. 19
of 2010 was registered against present respondent No.4. Respondent
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No.4, being aggrieved by the order passed by the District Supply
Officer, Osmanabad filed an appeal No. 284 of 2010 before the Deputy
Commissioner (Civil Supply), Aurangabad. The petitioner was not
made party to the said appeal. He filed intervention application as he is
original complainant.
The Deputy Commissioner, Aurangabad, after hearing the
parties as well as the petitioner intervener, by his judgment and order
dated 7.1.2011 rejected the appeal preferred by respondent No.4. The
respondent No.4 herein being aggrieved by the judgment and order of
the Divisional Commissioner, Aurangabad preferred revision before
the Minister of Food, Civil Supply and Consumer Protection,
Mantralaya, Mumbai. The Minister allowed the revision filed by the
respondent No.4. The petitioner being aggrieved and dissatisfied by
the judgment and order passed by the Minister, had filed writ petition
No. 6401 of 2011. This Court, after hearing the parties, remitted the
matter back to the Minister for reconsideration. The petitioner herein
appeared before the Minister and filed his detail reply to the revision
filed by respondent No.4. After hearing the parties, the Minister
allowed revision application filed by respondent No.4. Hence, this writ
petition.
5. Learned counsel appearing for the petitioner submits that the
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judgment and order passed by the revisional authority is enlarging the
scope of the revision. It is submitted that the Tahsildar made detail
enquiry and found that many irregularities and illegalities are
committed by respondent No.4, thereby violating the conditions for
running the fair price shop and therefore, licence to run the fair price
shop of respondent No.4 was cancelled. It is submitted that
respondent No.2 while rejecting the appeal filed by respondent No.4
found that respondent No.4 has committed serious irregularities,
inasmuch as she prepared a list of bogus card holders and committed
misappropriation for an amount of Rs.33,155/-. It is submitted that the
enquiry report submitted by the Tahsildar was accepted by the District
Supply Officer. Respondent No.4 was given proper opportunity and
thereafter the District Supply Officer rejected the contention of
respondent No.4. The Deputy Commissioner (Supply), Aurangabad
Region, Aurangabad has also confirmed the findings recorded by the
District Supply Officer. Therefore, according to the learned counsel
appearing for the petitioner, there was no reason for the Minister to
interfere in the findings/reasons recorded by the District Supply Officer
as well as the Deputy Commissioner (Supply), Aurangabad Region,
Aurangabad. It is submitted that, scope of revision before the Minister
is very limited. Unless it is found that the findings/reasons recorded by
the authorities below are baseless or totally perverse, no revision can
be entertained. It is submitted that respondent No.4 did prepare bogus
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list of B.P.L. (below poverty line) card holders and also other
beneficiaries and committed serious irregularities and illegalities,
therefore, the Minister should not have interfered in the decision of the
District Supply Officer and also the Commissioner. It is submitted that
the criminal case filed against respondent No.4 is pending
investigation, therefore, the Minister should not have shown any
indulgence in the matter by allowing the revision filed by respondent
No.4. Therefore, learned counsel relying upon the pleadings in the
petition, grounds taken therein, report of the Tahsildar, the findings
recorded by the District Supply Officer as well as the Divisional
Commissioner would submit that this writ petition deserves to be
allowed.
6. On the other hand, learned counsel appearing for respondent
No.4 invited my attention to the contents of the affidavit in reply and
submitted that the Minister has considered all aspects of the matter
and allowed the revision filed by respondent No.4. It is submitted that
criminal case filed against respondent No.4 is pending investigation
and there is no any reason as to why respondent No.4 should be
prevented from running the fair price shop and sale of kerosene. It is
submitted that the order passed by the Minister has already been
acted upon and therefore, the petition has become infructuous.
Learned counsel relied upon the reasons recorded by the revisional
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authority and submitted that this petition deserves to be rejected.
7. Learned A.G.P. appearing for respondent Nos. 1 to 3 submitted
that the judgment and order passed by the Minister is after hearing the
parties and the said order is subject to the outcome of the criminal
proceeding pending against respondent No.4.
8. I have given careful consideration to the rival submissions
advanced by the counsel for the parties. I have perused the contents
of the complaint filed by the petitioner before the District Collector,
Osmanabad. It appears that serious contentions are raised in the
complaint that the respondent No.4 has indulged in illegal activities of
preparing the list of bogus beneficiaries and lifting the food grains and
selling the same in the open market. The contents of the complaint
also disclose that, though the respondent No.4 on record has shown
distribution of food grains, there was no actual distribution of the food
grains/kerosene to the persons covered under B.P.L. Scheme and
also under other schemes of the government like Antyodaya and
Annapurna etc.
9. Upon careful perusal of Exh. B at page 17 of the compilation of
writ petition, it appears that Naib Tahsildar (Supply) Paranda has
inquired and inspected the fair price shop run by respondent No.4 and
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found that the licence is misused by respondent No.4 for self gain, the
schemes sponsored by the Government are not properly implemented,
bogus record is prepared, respondent No.4 has not made available
entire record of fair price shop for perusal to the inspecting squad, the
preparation of bogus receipts of allotment of food grains to the
persons, who are residing in other villages and thereby respondent No.
4 has gained Rs.33,155.60 Ps., the respondent No.4 has no any
courtesy with the card holders, registration of offence against
respondent No.4 under the provisions of Essential Commodities Act
being crime No. 19 of 2010 with Paranda police station etc. It appears
that show cause notice was given on 31.8.2010 to respondent No.4
and in pursuance to the said show cause notice reply was also filed by
respondent No.4 denying the contents of show cause notice. It
appears that the District Supply Officer after satisfying himself and
after perusal of the report of the Tahsildar, Paranda and reply filed by
respondent No.4, recorded his satisfaction that there are serious
irregularities and illegalities committed by respondent No.4 in running
the fair price shop and also offence is registered against respondent
No.4 with Paranda police station, cancelled the licence and also
forfeited the amount of deposit of Rs.1000/-.
10. Upon careful perusal of the judgment of the Deputy
Commissioner (Supply) Aurangabad Division, Aurangabad, it appears
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that the said authority has seen all the documents produced on record
and the record summoned from the office of District Supply Officer,
para wise comments, evidence produced on record by the authorities
through advocates and after hearing the parties, rejected the appeal
filed by the petitioner. The said authority has noticed that the
respondent No.4 has not produced the record of fair price shop
alongwith the appeal. The authorities has also taken a note of the fact
that the offence is registered against respondent No.4 and further the
charges levelled against her are serious in nature. Upon perusal of
reply to the show cause notice, the authority has noticed that the
respondent No.4 has not replied to all charges. The authorities have
also noted that the file summoned from the office of the District Supply
Officer does disclose the statement of beneficiaries, panchnama etc.
Therefore, it follows from the discussion in the said judgment that the
Deputy Commissioner (Supply) has meticulously considered the
material placed on record and also record/file summoned from the
office of the District Supply Officer and rejected the appeal filed by
respondent No.4 herein.
11. It appears that the decision of the Deputy Commissioner
(Supply), Aurangabad was challenged before the Minister in Revision
No. VAM-1011/C.N.108/CS-21 preferred by respondent No.4 which
was decided on 20.7.2011 by the Minister of Food, Civil Supply and
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Consumer Protection, Mantralaya, Mumbai. Even while deciding the
said revision, it clearly appears that the Minister had taken a note of
the fact that the offence is registered against respondent No.4 with
Paranda police station and also recorded that upon hearing the parties
and upon perusal of the documents produced on record, the
irregularities are committed by respondent No.4 while running fair price
shop and therefore, it is necessary to impose fine of Rs.5000/- upon
respondent No.4 and accordingly the Minister had partly allowed the
revision filed by respondent No.4 by imposing fine of Rs.5000/- for
committing irregularities.
12. The petitioner herein did file writ petition No. 6401 of 2011 with a
grievance that the revision is decided by the Minister without serving
notice of hearing on the petitioner, who is original complainant.
Therefore, this Court allowed the writ petition by setting aside the
judgment and order of the Minister dated 20.7.2011 and remitted the
matter back to the revisional authority.
13. Upon careful perusal of the judgment and order passed by the
Minister i.e. Revisional authority, in second round, it appears that in
the title cause of the revision, the petitioner herein is wrongly shown as
applicant, in fact the revision application is filed by respondent No.4.
From perusal of the operative part of the order, it further appears that
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clause 1 mentions that the revision filed by the petitioner herein has
been rejected. It appears that as stated by the petitioner in para 1 of
the writ petition, the petitioner is wrongly shown as revision applicant in
the said revision. By way of impugned order, the Minister upheld the
judgment and order dated 20.7.2011 in Revision No. VAM-1011/C.N.
108/CS-21 filed by respondent No.4 herein. Therefore, the findings
recorded by the Minister in his judgment and order dated 20.7.2011
that the respondent No.4 has committed irregularities and therefore,
she is liable to pay fine of Rs.5000/- are intact. From careful perusal of
the judgment of the Minister, it is abundantly clear that there are no
any findings or observations recorded by the said authority
disbelieving the enquiry report of the Tahsildar, which was
subsequently accepted by the District Supply Officer. The Minister
has accepted and observed that, there are certain deficiencies and
irregularities found during inspection of the shop run by the respondent
No.4, and rightly imposed fine of Rs.5000/-. However, it is beyond
comprehension to understand that after recording the said findings and
after taking a note of the fact that, the offence is registered against
respondent No.4 with Paranda police station under the provisions of
Essential Commodities Act, the Minister proceeded to partly allow the
revision filed by respondent No.4, ignoring that there is overwhelming
material available on record, and on the basis of said material/
evidence, Naib Tahsildar, made a report to the District Supply Officer
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and the District Supply Officer, after giving show cause notice to
respondent No.4 and after recording his satisfaction that, the licence of
respondent No.4 is required to be cancelled, has cancelled the licence.
The first revision filed by respondent No.4 is also rejected by the
Deputy Commissioner (supply) by giving cogent and sufficient reasons
based upon the material placed on record and also after giving proper
opportunity to all concerned. At this juncture, it would be relevant to
reproduce herein below the object of Essential Commodities Act :-
“The object of the Essential Commodities Act is to provide, in
the interests of the general public, for control of production,
supply and distribution of trade and commerce in commodities
which are specified in the Act to be essential commodities. The
power of search and seizure are incidental and supplementary
to other powers which are necessary to secure the objects for
which the Essential Commodities Act has been passed.
The very object of the Essential Commodities Act is to
check the inflationary trends in prices and to ensure equitable
distribution of essential commodities.”
14. Therefore, taking over all view of the matter, in my considered
opinion, the Minister of Food, Civil Supply and Consumer Protection,
Mantralaya, Mumbai, while entertaining the revision filed by the
respondent No.4 has acted beyond the scope of revision and partly
allowed the revision. In fact, when the Minister himself observed that
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respondent No.4 has committed irregularities while running fair price
shop and imposed a fine of Rs.5000/- on respondent No.4, there was
no reason for the Minister to proceed further and partly allow the
revision filed by respondent No.4.
15. This court in the case of Shivaji Tulshiram Thakre vs. State of
Maharashtra and ors. Reported in 2012 (3) ALL M.R. 789 has
considered the scope of revision by the revisional authority and in the
facts of that case, has taken a view that when the Minister confirmed
the findings that the charges have been established against the
licence holder and imposed fine of Rs.5000/- in that case, there was
no question of restoration of licence and such action/direction of the
Minister was beyond scope of review under clause 24(2) of the
Maharashtra Schedule Commodities (Regulation of Distribution) Order
(1975). This court in the case of Shivaji Tulshiram Thakre (Supra) in
para 9, held thus:-
“9. Now coming to the merits of the matter, in the order
dated 31-8-2009 passed by the Minister, which has been reviewed,
the finding was recorded that the charges of misappropriation have
been established and taking into consideration all the aspects, it was
held that respondent No.4 had violated the terms and conditions of
the fair price shop licence. In review, the finding that the charges
have been established against respondent No.4 has been
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confirmed. It is only on humanitarian ground that one more
opportunity was given to respondent No.4 to pay the amount, which
he had misappropriated, along with fine of Rs.5,000/- as a condition
for restoration of the licence. Such is not the scope of review under
clause 24(2) of the said Order. The order impugned changes the
view which was earlier taken on re-hearing of the matter. The view
taken earlier being a possible view of the matter, no interference
was called for in the jurisdiction of review under clause 24(2) of the
said Order. The order passed by the Minister, impugned in this
petition, cannot, therefore, be sustained.”
16. Therefore, taking over all view of the matter, in my considered
opinion, the impugned judgment and order dated 18.4.2012, passed
by the Minister, Food, Civil Supply and Consumer Protection in
Revision Application No. VAM-1011/C.N. 108/CS-21 cannot be
sustained in law and the same is therefore, quashed and set aside.
The order dated 9.9.2010, passed by the District Supply Officer,
Osmanabad cancelling the licence of respondent No.4 to run the fair
price shop, which is confirmed by the Deputy Commissioner (Supply)
Aurangabad Division, Aurangabad on 7.1.2011, stands upheld and
confirmed. As a result, restoration of licence/shop in favour of the
respondent No.4 stands cancelled. The concerned authorities are
directed not to allot quota of food grains or kerosene to respondent No.
4. The concerned authorities of the State Government shall issue
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fresh proclamation for allotment of shop in village Khasgaon, Tq.
Paranda, District Osmanabad in accordance with law and the
Government policies/relevant Government Resolutions/Rules etc. It is
made clear that such allotment should be strictly in accordance with
the government policies, framed from time to time, in that behalf.
17. Rule made absolute in the above terms. The petition is allowed
to the above extent and stands disposed of.
18. Learned counsel appearing for respondent No.4 makes an oral
prayer that effect and implementation of this judgment may be stayed
for two weeks to enable the said respondent to file appropriate
proceeding. The prayer is opposed by the counsel appearing for the
petitioner. However, in the interest of justice, the effect, operation and
implementation of this judgment is stayed for two weeks from today.
*
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