Sau. Ujwala Anilkumar Jain And ... vs The State Of Maharashtra, Through ...
2003 Latest Caselaw 289 Bom

JUDGMENT

Naresh H. Patil, J.

1. Rule, returnable forthwith.

2. Through this writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioners seek a writ of this Court to quash and set aside impugned order passed by the District Supply Officer, Dhule dated 20.11.2002, in pursuance to the order dated 4.10.2002 passed by the respondent No. 2, the Honourable Minister, Food and Civil Supplies Department, Government of Maharashtra and the respondent No. 3 Desk Officer, Food and Civil Supplies Department, Government of Maharashtra, granting retail dealer's kerosene licence as a 'Khas Baab' (special case) in favour of respondent No. 7 Sau. Anita (Kalpana) Bhagwan Chaudhari. The petitioners also pray for issuance of directions to the respondents to continue to supply quota of kerosene allotted to them earlier and to restrain the authorities from reducing the quota of kerosene as allotted to them for the month of November, 2002.

3. The petitioners contend that they were running fair price shops since 1996 at village Mukatee. Taluka and District Dhule. By letter dated 9th April, 2002, the petitioner No. 1 requested the respondent No. 4 District Supply Officer, Dhule to reduce her kerosene quota from 5220 to 3000 Ltrs. Accordingly, the quota was reduced and new quota was granted to the petitioner's fair price shop. The petitioner No. 1 in her communication dated 9.4.2002 addressed to the District Supply Officer had stated that the quota of 3000 Ltrs. of kerosene was sufficient for the purposes of distribution to the card holders. This figure was arrived at by the petitioner No. 1 after considering the demand of the card holders of the village.

4. The petitioner No. 1 had been to the office of the District Supply Officer for getting her monthly quota for kerosene and that time, she was informed that new kerosene retailer's licence was granted in favour of the respondent No. 7 Sau. Anita (Kalpana) Bhagwan Chaudhari. The petitioners contend that the permission granted in favour of the respondent No. 7 was without following the procedure of law and/or without publishing any advertisement inviting applications from the interested persons for granting retail dealer's kerosene licence. The action of the respondents was stated to be a colourable exercise of power. As a matter of policy, the Government and the authorities concerned ought to have issued a public advertisement calling applications for grant of a retail licence of kerosene, by the respondents. The Government and the authorities concerned have wrongly placed reliance on a Government Order dated 9.5.2000. The said Government Order dated 9th May, 2000 is not applicable to the facts of the present case, according to the petitioners. The impugned order of grant of retail dealer's kerosene licence to the respondent No. 7 lacks transparency. The order passed at the Government level which was followed by the authorities concerned is arbitrary and lacks bona fides and is bad in law.

5. On behalf of the respondent Nos. 4 and 5, an affidavit-in-reply was filed. It is stated in the affidavit that the respondent No. 4, on the basis of Government Order dated 9.5.2000 and after taking into consideration the facts and circumstances, had passed the order. The District Supply Officer who is the licensing authority within the meaning of Section 2(F) of the Maharashtra Kerosene Dealers Licencing Order, 1966, had accordingly granted licence. It is further stated that the deposit amount of petitioners namely, Sau. Ujwala Anilkumar Jain and Sau. Manish Dinesh Saidane was forfeited for violating the conditions of licence for running fair price shop. Relying on the Government Resolution dated 9.5.2000, it was stated that the officer concerned had given authority to issue new kerosene licence as a special case without issuing any proclamation in local newspapers or inviting applications in scarcity prone area in view of the Circular dated 26.8.2002. It was further stated in the affidavit that, the petitioners did not possess any valid licence for distribution of kerosene and by way of temporary measures, the petitioners were asked to distribute kerosene. Therefore, immediate action was taken and the respondent No. 7 was granted licence as a special case. It was incumbent on the part of the licensing authority to follow the guidelines stipulated in the circular dated 26.8.2002, which lays down the policy of the Government. As entire Dhule district was declared as scarcity prone area by Government Resolution dated 5.8.2002, the answering respondents were justified in granting retail dealer's kerosene licence in favour of the respondent No. 7 as a special case in tune with the Government order dated 9.5.2000. It is further submitted that as the petitioners hold licence of fair price shop, they have no right in law to object grant of licence in favour of the respondent No. 7.

6. On behalf of the respondent No. 7 Sau. Anita (Kalpana) Bhagwan Chaudhari, an affidavit-in-reply was filed. It is mainly contended that the petitioners do not have any locus standi to challenge the order of grant of licence in her favour. The petitioners have not approached the Court with clean hands. They do not possess valid licence of kerosene as contemplated under the Essential Commodities Act and under the Maharashtra Scheduled Commodities Retail Dealers Licencing Order, 1979 (hereinafter referred as the Licencing Order, 1979) and hence, the petition deserves to be dismissed at the threshold itself.

7. The respondent No. 7 had also relied upon the Government Order dated 9.5.2000. By referring to the Government Circular, Order and the Resolution issued in this regard from time to time, the respondent No. 7 stated that no illegality was committed by the respondents authorities in granting licence in her favour. As the entire Dhule district was declared as drought affected area, the Government was justified, in absence of any other licensed dealer operating in the area, to issue licence in favour of the respondent No. 7, which is in compliance with the policy laid down by the Government of Maharashtra.

8. On behalf of the petitioners, Shri Raghuwanshi, learned Counsel submitted that the licensing authority under the law is the District Supply Officer. The licensing authority has to be satisfied in cases where licence as a special case is to be granted, on the basis of the available record and material. A decision has to be arrived at after satisfaction of the conditions laid down by the Government from time to time in different Government resolutions, circulars and orders. In this case, the application was directly addressed by the respondent No. 7 to the Honourable Minister, Food and Civil Supplies Department and the Minister passed an order to grant licence of kerosene in favour of the respondent No. 7 as a special case. Based on the order passed at the ministerial level, the Desk Officer had issued further orders on 4.10.2002. Though, the petitioners did not prefer to challenge the validity of any of the Government resolutions, circulars or orders, under which the authorities claim to have granted licence in favour of the respondent No. 7, it is contended on behalf of the petitioners that the grant of licence is in breach of the Government orders, dated 16th August, 2001 and 26th August, 2002. In the submissions of the learned Counsel appearing for the petitioners, the decision to grant licence in favour of the respondent No. 7 as a special case was already taken at the ministerial level by the Honourable Minister and thereafter, to support such a decision, the authorities down below have prepared the case and submitted reports in favour of the respondent No. 7 so as to justify the order already passed on the representation made by the respondent No. 7, to the Minister, respondent No. 2. The entire exercise lacks transparency and hence, the petitioners are justified in assailing the order of grant of licence in favour of the respondent No. 7. It is further argued that the process of grant of licence in favour of the respondent No. 7 is illegal and lacks bona fides. Shri Raghuwanshi, learned Advocate for the petitioners placed reliance in the cases of Babaji Kondaji Garad and Anr. v. Collector of Parbhani District and Ors. ;

Chandrika Jha v. State of Bihar and Ors. .

9. Shri Sapkal, learned A.G.P. appearing for State and its authorities, submitted that the petitioners do not possess a valid licence of kerosene and they cannot have any grievance if the Government and/or its authorities decided to appoint a person as a licence holder under the Licencing Order, 1979. The conduct of the petitioner Nos. 1 and 3 was also brought into focus while they were dealing as licence holders of fair price shops. Though it was claimed by the petitioners that they were dealing with retail distribution of kerosene since 1996, it was by way of temporary measure the authorities had permitted them to deal in kerosene distribution as they were possessing licence of fair price shop. The entire Dhule District is already declared as a drought affected area and in the light of this decision of the Government, the authorities were justified, looking to the need of the people and the surrounding and attending circumstances, to appoint a licenced dealer. It was further argued that the petitioners have no locus standi to file the petition.

10. Shri Uday Malte, learned Counsel appearing for respondent No. 7 laid emphasis on the Government order dated 9th May, 2000 and contended that the authorities were justified in granting licence in favour of the respondent No. 7. There is no illegality committed by the authorities. The authority had granted licence after getting reports from the officer concerned and after getting satisfied that on merits that the respondent No. 7 deserves a licence. The procedure adopted in granting licence to the respondent No. 7 was transparent and in compliance of the Government policy laid down from time to time. Even, by grant of licence in favour of the respondent No. 7 some of the quota which was already dealt with by the petitioners would be reduced. Though, the petitioners do not possess a valid licence in their favour, they would not be affected by the grant of licence in favour of the respondent No. 7. Lastly, it was submitted that the respondent No. 7 had invested around Rs. 2,00,000/- (Rs. two lakhs) for creating infrastructural facilities to operate under the licence. In this view of the matter, the learned Counsel for respondent No. 7 prayed that the petition deserves to be dismissed.

11. The petitioners have preferred not to challenge the validity of any of the Government resolution, circular or order passed from time to time in connection with the distribution of kerosene and grant of licence. We find that Government order dated 9th May, 2000. Government Orders dated 16th August, 2001 and 26th August, 2002 are crucial for considering the issues raised before this Court. In absence of challenge to the validity of such Government Circulars and orders, it will have to be seen as to whether the action at the Government level and the procedure adopted by the authorities concerned, was in compliance with the policy of the Government. Whether the procedure adopted was transparent and reasonable.

12. We had called for the original files from Mantralaya, Mumbai and from the office of the Collector, Dhule. We have perused these files.

13. The file at the ministerial level concerning the respondent No. 7 discloses that an application was made to the Minister, Food and Civil Supplies Department dated 18.9.2002 by the respondent No. 7 seeking grant of retail dealer's kerosene licence. On the said application, the Minister had passed an order on the same day to the effect that licence be granted as a special case. Earlier to that, we find application dated 9.9.2002 addressed by the respondent No. 7 to the District Supply Officer, Dhule for grant of such a licence and by communication dated 17.7.2002, the District Supply Officer had intimated the respondent No. 7 that powers to grant licence as special case lie with the Government in view of the Government Circular dated 26th August, 2002. It was further contended that the respondent No. 7 may apply whenever public advertisement would be issued for grant of kerosene licence. We also noticed a note put up before the Minister in which reference was made to Government order dated 9th May, 2000, Government Resolution dated 26.8.2002 and 16.8.2001. On the said note, one of the endorsement is of the Minister passed on 4.10.2002 and order to the effect that licence be granted according to the Government Resolution of 9th May, 2000. The Desk Officer had accordingly, communicated by a letter dated 4th October, 2002 to the Additional Collector, Dhule to grant licence to the respondent No. 7 in tune with the policy of the Government Order dated 9th May, 2000. He had also referred to the Government Circular dated 26th August, 2002 and directed the authorities to act according to the said Government circular keeping in view the attending circumstances, the need to grant such licence and the rules and regulations in this regard.

14. Perusal of the file placed before us from the office of the Collector, Dhule shows that the case of the respondent No. 7 was recommended by one Subhash Devare, who is Chairman of Construction and Education Committee, Zilla Parishad, Dhule, in October, 2002. We find that by a communication dated 8.11.2002 the Tahsildar, Dhule had submitted a fact finding report concerning the feasibility of grant of licence in favour of the respondent No. 7. The report is favourable to the respondent No. 7. It is found that the communication was made by District Supply Officer to the Desk Officer, Food and Civil Supplies Department dated nil, November, 2002 in which the communication issued by the Desk Office dated 4th October, 2002 was termed to be vague in nature and the District Supply Officer requested for a clear-cut order as to whether grant of licence is to be considered as a special case.

15. Though, the Government Order dated 9th May, 2000 empowers the Government to grant Kerosene licence as a special case, it was to be granted in compliance with the policy of the Government as stipulated in the Government Order dated 16th August, 2001 and more particularly, 26th August, 2002. The conditions stipulated in the Government order dated 26th August, 2002 show that there has to be a need to grant such a licence as a special case. Following are the conditions :-

(A) That, in view of the Government Order dated 9th May, 2000, there has to be a drought situation and difficulty for the consumers to secure kerosene.

(B) That, the consumers of kerosene at the said place are deprived of the allotment of kerosene.

(C) That, the grant of new licence of kerosene does not result in reduction of the quota of other licensee by 7 Kilo Litres, Caution be taken to see that existing licence holder do not complain of grant of new licence.

(D) That, before granting licence, the authorities should be satisfied that grant of new licence will remove difficulties of card holders and the consumers are not forced to stand for a long time in queue.

16. Obviously, the authorities were expected to scrutinise the required material based on the factual situation before granting licence as a special case. In this case, the Minister, Food and Civil Supplies Department had passed an order to grant licence as a special case in favour of the respondent No. 7 on the representation made by her to the Minister, on the same day i.e. on 18.9.2002. Satisfaction of the conditions stipulated in the policy of the Government could not be reached as nothing was placed before the Honourable Minister to arrive at a decision based on the available material on record and to get himself satisfied and pass a justifiable order directing the authorities to grant licence in favour of the respondent No. 7. In this case the order of the Minister directing grant of licence in favour of the respondent No. 7 precedes the satisfaction of the authorities down below on the material placed before them. As the Minister in-charge of the department had passed an order to grant licence in favour of the respondent No. 7 as a special case, there was hardly any scope for the authorities below to submit a contrary report. The grievance of the petitioners on this aspect of the matter is convincing. The impugned order of grant of licence is thus, passed in an unreasonable manner and violates the policy of the Government itself which is laid down from time to time. The impugned order is passed in breach of the policy set out in Government Order dated 9th May, 2000.

17. On the issue of locus standi of the petitioners, we find that there is no dispute that the petitioners do not possess a valid licence. But, that does not refrain the petitioners to approach this Court in writ jurisdiction to challenge the impugned order. The action at the Government level and the orders passed by the authorities ought to be backed by transparency, reasonability and fair play. On behalf of the State and the respondent No. 7, it was stated that the petitioner Nos. 1 and 3 were punished for lapses while conducting the fair price shops. This itself would not be a ground to dismiss their petition. It requires to be noted that the office of the District Supply Officer had continued the allotment of quota in favour of the petittioners since the year, 1996 though it has been submitted before this Court that it was by way of temporary measure.

18. The respondent No. 7 had contended that she had invested around Rs. 2,00,000/- (Rs. two lakhs) for the operational purposes. That could not be a factor to allow the respondent No. 7 to work under the licence in view of the aforementioned reasons.

19. In view of the aforementioned reasons, the impugned order passed by the District Supply Officer, Dhule dated 20.11.2002 in pursuance to the order passed on 4.10.2002 by the Desk Officer, Food and Civil Supplies Department, Government of Maharashtra is quashed and set aside.

We make it clear that the quashing of the impugned order passed by the District Supply Officer shall not bind the authorities to grant quota of kerosene in favour of the petitioners as was done before.

20. Rule is made absolute in the above terms with no order as to costs.

After pronouncement of the judgment, Shri Malte, learned Counsel appearing for respondent No. 7 prayed at this stage to stay the operation of the order for a period of six weeks. In the facts and circumstances of the case, we do not feel it expedient to stay the order. The request is accordingly refused.