Smt. Sushilabai Manoharrao ... vs Kachruappa S/O Laxmanappa ...
2007 Latest Caselaw 901 Bom

JUDGMENT

S.B. Deshmukh, J.

1. This petition takes an exception to the judgment and order passed by the learned Minister for State, Food and Civil Supply and Consumer Protection, Mantralaya, Mumbai. The order is passed on 23rd February, 2005. Said proceeding was registered as No. 1604/1066/PK 797/NP21. Present Respondent No. 1, in this writ petition, was the petitioner (as mentioned in the order passed by the Minister). Present writ petitioner was Respondent No. 3 in the proceeding entertained and partly allowed by the learned Minister/ respondent No. 4.

2. Learned Counsel for the Petitioner, at the out set, has pointed out the order passed by the Deputy Commissioner, Aurangabad dated 10th of May, 2004. By this order, the order passed by the District Supply Officer dated 13th February, 2004, has been confirmed. The order passed by learned District Supply Officer, Parbhani dated 13th February, 2004 seems to have been passed under Clause 3 (4) of the Maharashtra Scheduled Commodities (Regulation of Distribution) Order, 1975 (herein after referred as the Order of 1975, for short). By this order, authorisation of the petitioner in relation to fair price shop (food grains) as well as licence for kerosene came to be suspended and the amount deposited towards security deposit, for both these authorisation and licence, also came to be forfeited. Order passed by the Deputy Commissioner (Supply), Aurangabad in appeal was subject matter before the learned Minister/ Respondent No. 4. It was decided on 1st July, 2007. There, at that time, without hearing the present Petitioner, the learned Minister decided the matter in favour of the Respondent No. 1 and quashed and set aside the order passed by the learned Deputy Commissioner (Supply), Aurangabad. This order, passed by the learned State Minister, was subject matter of writ petition No. 4884 of 2004, filed by the present Petitioner, in this Court. Said writ petition was disposed of, after hearing the parties, by the learned Single Bench of this Court by the order passed on 16th August, 2004. By this order, earlier order passed by the learned State Minister came to be quashed and set aside and revision application was relegated to learned State Minister for disposal in accordance with law. After this order, passed by the High Court, it appears that Revision Application filed by Respondent No. 1, before the Respondent No. 4 came to be disposed of by the order passed on 23rd February, 2005. Said Revision Application is partly allowed, which order, now is subject matter of the present writ petition.

3. The record and proceeding is made available by the learned A.G.P. Affidavit in reply, on behalf of the State, is also filed. Affidavit is filed by Respondent No. 1. In this affidavit, Respondent No. 1 has made a statement that since 2004 his fair price shop as well as licence for kerosene is being suspended. Deposit for both the purpose i.e. fair price shop and kerosene also stand forfeited. The Respondent No. 1 is running the fair price shop at village Charthana from 1974. Since 1985 separate licence for sale of kerosene in favour of the Respondent No. 1 is also granted by the competent authority. There is no complaint against the Respondent No. 1 for this period. Since, on account of suspension of fair price shop as well as licence for kerosene, the petitioner has suffered a lot. According to the learned Counsel for the Respondent, order passed by the learned State Minister is within the parameters of revisional jurisdiction. He ultimately prayed for dismissal of the writ petition.

4. Learned Counsel for the Petitioner has invited my attention to the complaints made by the Petitioner along with other villagers. Report of the Tahsildar and other material is produced on record. Learned A.G.P. has also invited my attention to the affidavit in reply filed on behalf of the Respondents.

5. The State of Maharashtra, exercising its powers under Section 3 (2) (i) read with Clauses (c), (d), (e), (f), (h), (i), (ii) and (j) of the Essential Commodities Act, 1955 read with order of the Government of India, Ministry of Agriculture and with the prior concurrence of the Central Government, issued the order viz. the Maharashtra Scheduled Commodities (Regulation of Distribution) Order, 1975. Scheme of Targeted Public Distribution System has been introduced in the State of Maharashtra since long for distribution of food grains, kerosene etc. In this order of 1975, powers of issuance of authorisation to fair price shops and agents to obtain and supply scheduled commodities are enlisted under Clause 3. In this writ petition, we are concerned with subclause (3) and (4) of Clause 3, which is reproduced herein below:

3. Issue of authorisation to fair price shops and agents to obtain and supply scheduled commodities. - (1) with a view to controlling the distribution of scheduled commodities, the State Government or the Collector may issue an authorisation to any person for being a fair price shop or for being an agent of any fair price shop, to obtain and supply scheduled commodities in accordance with the provisions of prescribed by or under this Order.

(2) Every fair price shop shall deposit with the Government or the Collector, a sum not exceeding Rs. 5,000 as may be specified by it in this behalf, for the due performance of the conditions of the authorisation and the sum so deposited or any part thereof, may without prejudice to any other penalty, after enquiry and for reasons to be recorded in writing, be forfeited by the State Government or the Collector for contravention of any such conditions.

If, as a result of any departmental action, the sum deposited or any part thereof forfeited, the fair price shop shall forthwith pay to Government such amount as may be required to make up the prescribed sum to be deposited as security.

(3) On the commencement of this Order in any area, in the case of an authorised fair price shop who is deemed to be a fair price shop under the Explanation to Sub-clause (f) of Clause 2, any sum which stands deposited by him as security immediately before such commencement shall be deemed to be deposited with the State Government as full or part security for the purposes of this clause.

(4) The State Government or the Collector may, at any time whether at the request of the fair price shop or authorised agent or suo-motu, after making such enquiry as may be deemed necessary and for reasons to be recorded in writing, add to, amend, vary, suspend or cancel the authorisation issued or deemed to be issued to him under this clause.

6. Thus, from subclause (3) of Clause 3, it is vivid that any sum which stands deposited by the authorised agent as security immediately before such commencement shall be deemed to be deposited with the State Government as full or part security for the purposes of this clause. Under Sub-clauses (3) and (4) the State Government or the Collector are empowered at any time whether at the request of the fair price shop or authorised agent or suo-motu, after making such inquiry, as may be deemed necessary and for reasons to be recorded in writing, add to, amend, vary, suspend or cancel the authorisation issued or deemed to be issued to him under this clause. Thus, power of suspension of fair price authorisation/ shop, is vested with the State Government or the Collector. Power to forfeit the deposit is also vested with the State Government or the competent authority. Such suspension or forfeiture can be done after making such inquiry as may be deemed necessary and for reasons to be recorded in writing by the authority concerned. Forfeiture of the deposit is contemplated under Clause 3 (4). Thus, two orders are not alternate. Authority concerned can exercise the powers and pass such orders within the parameters of Clause 3 of Order of 1975. Power is also vested with the authority to cancel the authorisation issued or deemed to be issued under Clause 3.

7. The Maharashtra Kerosene Dealers Licensing Order, 1966 came to be issued by the State of Maharashtra. In this order of 1966, Clause 10 refers to the provision for cancellation or suspension of licence. In case of contravention of the terms and conditions of the licence by the holder of the licence, his agent, servant or any other person, such licence for sale of kerosene may be suspended or cancelled by the competent authority by order in writing. These powers are vested with the Licensing Authority which is defined under the Order of 1966. Proviso to this Clause 10 obligates the competent authority to give reasonable opportunity of stating his case to the licensee against the proposed cancellation or suspension. Such order is made appealable under Clause 14 and further made reviseable under Clause 15 of the Order of 1966. Powers of revisional authority in the Order of 1975 and in the Order of 1966 are with the State Government and are of similar nature.

8. I have perused the entire record and proceedings as noted above. I have also perused the report of the Tahsildar, order passed by the District Supply Officer, Order passed by the learned Deputy Commissioner (Supply), Aurangabad. I have also perused the order passed by the learned Minister i.e. Revisional Authority. In para 8 of the Order impugned, in this petition, the Respondent No. 4 has accepted the explanation tendered by the Respondent No. 1, fair price shop runner/ licensee. For displaying the board showing price of the scheduled commodities and stock of the scheduled commodities, explanation tendered by the Respondent No. 1 is through oversight. Availability of the food grains and/ or kerosene and its stock is important feature of this public distribution system. Beneficiary of such commodities on his visit to the shop or premise comes to know as to how much was the stock received by the licensee/ fair price shop runner, how much is sold and how much stock is available. In the absence of such details on board, in accordance with the Order of 1975 and Order of 1966 beneficiaries are at loss to know as to whether scheduled commodities which are very dearer to them are available for sale. The fair price shop runner or licensee cannot take resort of such excuse that board was not displayed through oversight. Moreover, such explanation was not accepted by the appellate authority i.e. Deputy Commissioner. Sale register, another important register, was not maintained by the Respondent No. 1. Explanation tendered for this purpose seems to not have been accepted by the Revisional Authority. Revisional Authority has recorded a finding that up to some extent Respondent No. 1 has committed mistakes. According to Respondent No. 4 running a fair price shop and licence for sale of kerosene is the only source of maintenance for the Respondent No. 1. His prayer that, by imposing some fine it should be regularised seems to have been accepted by the Revisional Authority i.e. Respondent No. 4. The Revisional Authority refers to the grievance raised by the petitioner to the extent of cancellation of the authorisation, she has not raised a grievance that she was not supplied with food grains or the kerosene. The Revisional Authority recorded a finding that complaint made by the petitioner seems to be out of rivalry. The Revisional Authority seems to have passed the order, impugned in this writ petition, to condone the inconvenience of the villagers. The Revisional Authority has observed that earlier also amount of deposit in relation to Respondent No. 1 was forfeited. The Revisional Authority, therefore, found that punishment of suspension of these two, authorisation and kerosene licence is a serious punishment and set aside the same.

9. Having heard the learned Counsel and considering the order impugned, it is not possible to accede to reasons of the Revisional Authority. In my view, non-displaying the stock is serious and grave circumstance against the Respondent No. 1. Countless beneficiaries for whom the Targeted Public Distribution System is made operational, are suffering. The appellate authority has recorded a finding that the Respondent No. 1 was selling the scheduled commodities for more price than slated by the State Government. This finding, even, is not referred to by the Regional Authority. Running a fair price shop may be a means of sustenance to the family of Respondent No. 1, however, scheduled commodities (food grains) made available at fair price shop and kerosene, is necessary for large number of families in their day to day chore. The inconvenience and sufferance to the large number of beneficiaries, a finding of fact recorded by the Tahsildar, Supply Officer and Appellate Authority, Deputy Commissioner, could not have been lightly set aside by the Revisional Authority. The order impugned, in this writ petition, in my view, is perverse and needs to be quashed and set aside.

10. From the papers, it appears that Crime No. 3012 of 2004 is also registered against the Respondent No. 1 with Jintur Police Station on 25th of February, 2004. Not only this, but, from the papers it seems that there was a star question in the House.

11. In this view of the matter, writ petition is allowed. Order impugned, in this writ petition, passed by the Respondent No. 4, is quashed and set aside. Rule accordingly is made absolute in above terms. Interim relief stands vacated. No costs.

Original papers are returned to learned A.G.P. across the table.

12. In view of final disposal of the writ petition, Civil Application No. 12169 of 2005 stands disposed of.