Baburao Dnyandevrao Pawar vs 6 The Additonal Commissioner
2010 Latest Caselaw 189 Bom

                                            1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                          
                  APPELLATE SIDE, BENCH AT AURANGABAD




                                                  
                       WRIT PETITION NO. 4088 OF 1991



     Baburao Dnyandevrao Pawar,




                                                 
     Age major, Occ. Agri and Business
     r/o. Lingsa, Taluka Partur
     District Jalna                                        ...Petitioner

                  Versus




                                        
     1
                       
           The State of Maharashtra
           (Through the Government Pleader)
           High court, Bench at Aurangabad
                      
     2     The Assistant Collector, Jalna
           District Jalna

     3     The Sub Divisional Officer,
      

           Jalna, District Jalna

     4     The Tahsildar, Partur
   



           Tq. Partur, District Jalna

     5     Narayan Panditrao Bhale,
           Age major, Occ. Agriculture,





           R/o. Lingsa, Tq. Partur
           District Jalna

     6     The Additonal Commissioner,
           Aurangabad Divsion,
           Aurangabad                                      ...Respondents





                                          .....

     Ms. Vaishali Deshmukh, advocate h/f Mr. V.D. Salunke, advocate for the
     petitioner

     Mrs. V.A. Shinde, A.G.P. for respondent Nos.1 to 4 and 6.

                                          .....




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                                                 CORAM: S. S. SHINDE, J.

                                                 DATED:    24TH NOVEMBER, 2010




                                                       
     JUDGMENT:-


     1        This writ petition takes exception to the judgment and order




                                                      
     dated     20.11.1991      passed   by       the   Additional      Commissioner,

Aurangabad in Case No. 91/SB/DESK-3/CSE/REV/CR-95.

2 The background facts of the case, leading to file the instant writ

petition, are as under;

The petitioner herein is resident of village Lingsa, Tq. Partur,

District Jalna, who is educated unemployed person and running a fair

price shop in the village Lingsa, Taluka Partur. Previously, the

respondent No.5 was running the fair price shop in the said village.

After the said fair price shop was allotted to respondent No.5 herein,

there were some complaints of respondent No.5 made by the card

holders. Therefore, respondent No.2 directed the Tahsildar, Partur to

make enquiry in the matter against respondent No.5. The said Officer

made detailed enquiry and came to the conclusion that the respondent

No.5 has not distributed the commodities to card holders and also not

maintained the record properly. The Inquiry Officer recommended to

cancel the licence of respondent No.5.

The respondent No.2 herein after going through the remarks of

the enquiry Officer in the report submitted by respondent No.4 found

that the respondent No.5 has not maintained the record of the shop as

per the procedure. So also he has not submitted record before the

Inquiry officer and same fact has been admitted by respondent No.5 in

his reply. Respondent No.2 passed oder on 24.5.1991 and directed

him to deposit the amount. Respondent No.5 was further warned to

improve his conduct and the transaction in future.

inspite of the above order passed by respondent No.2,

respondent No.5 again indulged in similar activities and again the

authorities received the complaints against respondent No.5 from card

holders. Again respondent No.2 directed the enquiry officer i.e.

respondent No.4 to make detailed enquiry against respondent No.5

and for the second time it was also found that the respondent No.5

herein had not maintained the visit book, receipts in particular form

and submitted false explanation before the Supply Inspector.

Respondent No.2 after perusing the report filed by respondent No.4,

issued show cause notice to respondent No.5 and cancelled his

licence by order dated 5.8.1991.

Respondent No.3 had published public proclamation and invited

applications from the interested persons for allotment of fair price shop

at village Lingsa. Respondent No.2 interviewed the petitioner and

other applicants on 30.9.1991. Respondent No.2 found the petitioner

to be eligible person and granted licence in his favour and permitted

him to run the said shop. The petitioner deposited an amount of Rs.

1000/- through Kisan Vikas Patra bearing No. 03EE 710199 and 03EE

710200 in the post office at Jalna on 11.10.1991. As per the order

passed by respondent No.2, the petitioner herein lifted the food grains

in the month of November, 1991.

Respondent No.5 filed revision petition under clause 24 of the

Order of 1975 before respondent No.6, Divisional Commissioner

challenging the order dated 5.8.1991 which is at Exh."D" to this

petition. Respondent No.6 allowed the revision petition filed by

respondent No.5 with direction to allot the fair price shop to respondent

No.5 herein i.e. revision petitioner by order dated 20.11.1991. Hence,

this writ petition.

3 Learned counsel for the petitioner submitted that the impugned

order does not give any cogent reasons while setting aside the order

passed by respondent No.2 on 5.8.1991. Respondent No.2 herein

passed the order on 5.8.1991 since respondent No.2 has received

complaints from card holders even on second occasion. Though

respondent No.5 was warned earlier by respondent No.2, again he

indulged in illegal activities in not maintaining the proper record and

not addressing the grievance of the card holders and therefore, the

complaints were received from the card holders and after enquiry by

respondent No. 3 and 4 on the directions of respondent No.2, a report

was received by respondent No.2 and accordingly a show cause

notice was issued to respondent No.5 and action was taken against

respondent No.5. Learned counsel further submitted that as per the

relevant Government Resolution if the licence holder has not

maintained the record properly, his licence is liable to be cancelled.

Learned counsel further invited my attention to the grounds taken in

the petition and reasons recorded by the authority while cancelling the

licence of respondent No.5. Relying on the averments in the petition

and the grounds taken therein, counsel for the petitioner would submit

that this petition deserves to be allowed.

4 Learned A.G.P. representing the authorities i.e. the authorities

of the State Government submitted that since the authorities have

passed contradictory orders, she is not able to assist this court.

5 On careful perusal of the order passed by the Additional

Commissioner, I find that the order not only suffers from not having

any cogent reasons in respect of issuing directions to the Sub

Divisional Officer to re-allot fair price shop to respondent No.5. In fact

upon perusal of the impugned order, it clearly appears that the

Additional Commissioner has not taken into consideration the fact that

the order passed by respondent No.2 was upon receipt of complaints

from card holders. Not only this but enquiry was directed even on

second occasion against respondent No.5 and after receiving enquiry

report from respondent No.4, respondent No.2 issued show cause

notice to respondent No.5 and passed order dated 5.8.1991 which is

at Exh. "D" to this petition.

6 The reasons which are assigned by the Additional

Commissioner, Aurangabad while appreciating the order dated

5.8.1991, passed by the Sub Divisional Officer, the Additonal

Commissioner has observed that since earlier Sub Divisional Officer

was transferred and therefore, the said order came to be passed in

second time. In fact, this observations of the Additional Commissioner

are contrary to the record, as even on second occasion there was

proper enquiry against respondent No.5. After receipt of complaints

from card holders and after proper enquiry report was submitted by

respondent No.4 on the directions of respondent No.2. Upon receipt

of enquiry report, proper show cause notice was given to respondent

No.5 and thereafter action followed. Therefore, the Additional

Commissioner misdirected himself without verifying the relevant record

and without assigning any reasons, has passed a cryptic order thereby

not only setting aside the order passed by the Sub Divisional Officer,

Jalna dated 5.8.1991 but has directed to allot the fair price shop to

respondent No.5. It appears that the Additional Commissioner did not

even bother to look into the record of the case and by cryptic order

without assigning any reasons has set aside the order dated 5.8.1991

passed by the Sub Divisional Officer. The order passed by the

Additional Commissioner is perverse.

7 In the light of above circumstances, the order dated 20.11.1991

passed by the Additional Commissioner, Aurangabad in Case No.

91/SB/DESK-3/CSE/REV/CR-95, is quashed and set aside.

Rule made absolute in the above terms. Petition is allowed to

the above extent and disposed of.

*****