Bombay High Court
Rajendra vs The State Of Maharashtra on 1 October, 2012
Bench: B. P. Dharmadhikari, A.P. Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL No. 333/2011
IN WRIT PETITION No. 5993/2010.
Rajendra s/o Nandlal Agrawal,
Aged about 47 years, Occ - Business,
R/o. Lahariya Plot, Chikhali Road,
Murtizapur, District Akola. .... APPELLANT.
VERSUS
1.The State of Maharashtra,
through Principal Secretary, Food and
Civil Supplies Department,
Mantralaya, Mumbai - 32.
2.The Hon'ble Minister (Food, Civil Supplies
and Consumer Protection) Government
of Maharashtra, Mantralaya,
Mumbai - 32.
3.The District Supply Officer,
Akola.
4.The Tahsildar, Murtizapur,
District Akola.
5.Kallumal Sindamal Sabhagandhani,
through Smt. Dhanwantibai Kallumal
Sabhagandhani, r/o. Shankar Soda
Factory, Main Road, Murtizapur,
District Akola. .... RESPONDENTS
.
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Mr. Firdos Mirza & Anand Deshpande, Advocate for Petitioner.
Mr.Mujumdar, learned A.G.P. for respondent nos. 1 to 4
Mr. Anand Parchure with Mr. Sharma, Advocate for respondent no.5
-----------------------
CORAM : B.P. DHARMADHIKARI
& A.P. BHANGALE, JJ.
Date of Pronouncement.
Date of reserving the Judgment. -
-
12th September, 2012.
1st October, 2012.
JUDGEMENT. (Per B.P. Dharmadhikari, J)
In this Letters Patent Appeal challenge is to order passed by
the learned Single Judge on 30.07.2011 in Writ Petition No.
5993/2011, holding that the petitioner, who presented the petition
under Articles 226 and 227 of the Constitution of India lacked locus to
maintain it.
2. In Writ Petition No. 5993/2010 the challenge before the
learned Single Judge was to the order dated 15.09.2010 passed by the
Hon'ble Minister (Food, Civil Supplies and Consumer Protection),
reviewing his earlier order dated 05.09.1997 and thereby granting
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renewal of "Semi Wholesale Kerosene License" to respondent no.5, after
he paid the necessary amount and penalty. The petitioner in that
petition, who is appellant before us is, admittedly carrying on the
business as Semi Wholesale Kerosene Dealer in same area and
according to him, this renewal granted to respondent no.5 after several
years adversely affects the quota of kerosene being made available to
him and his business. The appellant, therefore, contends that he is a
person aggrieved.
3. It is not in dispute that earlier he had filed Writ Petition No.
184/2009 on 01.07.2009 and it was disposed of by recording a finding
that he was not a person aggrieved. It was assailed in Letters Patent
Appeal No.337/2009 and during hearing of that appeal, the State
Government made a statement that it would extend an opportunity of
hearing after withdrawing the order dated 20.09.2008, which was
assailed in Writ Petition No. 184/2009. Because of these developments,
the Letters Patent Appeal was disposed of on 30.09.2009 by giving
liberty to party aggrieved by fresh decision of the Hon'ble
Minister/State to challenge it before appropriate forum. The Hon'ble
Minister then heard the appellant - Rajendra and then declared that
Rajendra did not possess necessary locus. This order passed on
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15.09.2010 formed subject matter of Writ Petition No.5993/2010.
4. Before the learned Single Judge, reliance was placed upon
the assurance given in Letters Patent Appeal No.337/2009 to hear the
petitioner/appellant and upon judgment of Hon'ble Apex Court
reported in AIR 1976 SC 578 (Jasbhai Motibhai Desai .vrs. Roshan
Kumar Haji Bashir Ahmed & others), to contend that the appellant
could not have been viewed as a busybody.
5. Learned Single Judge however, relied upon very same
judgment as also judgment of Hon'ble Apex Court reported at 2004 (1)
Mh.L.J. 633(Surya Dev Rai .vrs. Ramchander Rai and others), to note
distinction between jurisdiction under Articles 226 and 227 of the
Constitution of India. It is found that the jurisdiction under Article 226
is exercisable when a decision is invoked by a party aggrieved. Mere
reduction in quota of kerosene is, found not sufficient to view
petitioner/appellant as a person aggrieved. Finding reached is, said
petitioner lacked locus and hence, petition has been dismissed without
going into the merits of the controversy.
6. Letters Patent Appeal No. 227/2012 is also listed in group
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before us. It arises out of Writ Petition No.3933/2011, and Petitioner -
Mohan there had complained to authorities against the working of shop
of respondent no.2. Acting on this complaint, the District Supply
Officer cancelled the kerosene dealer's licence of that respondent. The
learned Single Judge has found that merely because the petitioner in
petition was complainant before such authority, he could not be viewed
as a person aggrieved, so as to enable him to maintain an appeal under
Clause 15[1] of the Maharashtra Scheduled Commodities, Retail
Dealers Licensing Order, 1979 (hereinafter referred to as "the 1979
Order" for short). Because of this finding, it is further held that as such
complainant cannot be a person aggrieved under Clause 15[1], he also
cannot be said to be a person aggrieved by a decision passed in that
regard under Clause 16 of the 1979 Order. The controversy is found to
be covered by judgment delivered by the learned Single Judge in Writ
Petition No. 5646/2010 on 20.09.2011. We have issued notice for final
disposal in the said Letters Patent Appeal No. 227/2012 on 12.09.2012.
7. The learned Counsel for the petitioner had invited attention
of the learned Single Judge to judgment delivered in Writ Petition No.
3891/2009 on 09.11.2009. The learned Single Judge found that said
decision pertains to cancellation of Fair Price Shop and an appeal under
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Clause 24 at the instance of the complainant, was maintainable. Thus,
judgment delivered in Writ Petition No. 5649/2010 reported at 2010(1)
All MR 150 (M/s. Vishnu Horticultural Pvt. Ltd and another .vrs. M/s.
Shampiyan Viniyard Ltd and others) has been followed and petition is
dismissed for want of locus.
8. It needs to be noted here that against adjudication in Writ
Petition No. 5646/2010, Letters Patent Appeal No. 434/2011 has been
disposed of by this Court on 11.09.2012 by permitting the complainant
therein to file revision before the Hon'ble Minister. In short contention
that, such complainant who is not entitled to maintain appeal under
Clause 15[1] of 1979 Order is also not competent to file revision or
other proceedings before the State Government, has not been raised.
9. We have heard Shri Firdos Mirza, with Shri Deshpande,
learned Counsel for the appellant - Rajendra, Shri Mujumdar, learned
A.G.P. for respondent nos. 1 to 4 and Shri Anand Parchure with Shri
Sharma, learned Counsel for respondent no.5.
10. Shri Mirza, learned Counsel has contended that after
respondent no.2 - Revisional authority agreed to hear the appellant
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before this Court, and this Court noted it in its order dated 30.09.2009
while disposing of the Letters Patent Appeal No.337/2009, it was not
open to the said respondent to turn around and to contend that the
present appellant lacked locus. Impugned order passed by the Hon'ble
Minister in this background on 15.09.2010 is, therefore, stated to be
unsustainable.
11.
To substantiate his grievance, Shri Mirza, learned Counsel
points out that initially the licence in favour of respondent no.5 was
cancelled on 17.05.1987. He challenged that cancellation and on
05.09.1997 revision filed by him was dismissed by the State
Government. Thus, that decision of cancellation attained finality.
Respondent no.2 Hon'ble Minister then took cognizance of the order,
and by order dated 20.09.2008 while exercising review jurisdiction, the
order of cancellation of licence dated 17.05.1987 was recalled. The
review jurisdiction was exhausted on 05.09.1997 and that order was
reopened after 11 years. Our attention has been invited to Clause
15[1][b] of the 1979 Order to show that though there is power to take
suo moto cognizance, there is time limit of two years prescribed. The
Hon'ble Minister after exercise of revisional jurisdiction could not have
and in any case in the year 2008, cannot assume jurisdiction and set
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aside its earlier order.
12. He has relied upon Division Bench judgment reported at
2012 (3) All M.R. 337 = 2012 (3) Mh.L.J. 860 (Prashant Amrutrao
Tayade .vrs. The Hon'ble Minister for Cooperation and others), to
submit that the distinction between busybody or a meddlesome
interloper and a person interested, is already noted therein, in the light
of the various judgments delivered by the Hon'ble Supreme Court.
Judgment of Hon'ble Supreme Court reported in case of Jasbhai
Motibhai Desai .vrs. Roshan Kumar Haji Bashir Ahmed & others
(supra), is pressed into service. The learned Counsel urged that there
the Hon'ble Supreme Court has considered the business competition in
normal trade or business activity like Cinema. Here the activity is
controlled and kerosene is an essential commodity. A person willing
to deal in said business has to fulfill various formalities and after getting
licence, he is supposed to carry on the business strictly in terms thereof.
Quota of kerosene received by him, price thereof, price at which it is to
be sold, are all pre-determined and licence holder like the appellant
does not have any say in the matter. The aspect of locus in such matter,
therefore, cannot be viewed in the light of the judgment which deals
with the nature / open business. He has also invited our attention to
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the judgment reported at AIR 2000 SC 3266 (M.S. Jayarao .vrs.
Commissioner of Excise, Kerala and others), where the Hon'ble
Supreme Court has considered its earlier judgment in case of Jasbhai
Motibhai Desai .vrs. Roshan Kumar Haji Bashir Ahmed & others
(supra). Shri Mirza, learned Counsel submits that the said judgment
has been explained and applied in later judgment.
13.
Appellant / petitioner was appointed as a Dealer in the year
1993 after following necessary procedure and he has jurisdiction over
entire Murtizapur Tahsil in Akola District. Respondent no.5 is being
introduced in very same area, and hence quota of appellant is bound to
be reduced. The respondents have not denied this impact of
restoration of licence and hence, grievance of appellant/petitioner
needs to be examined on merits. Reliance is also being placed upon the
judgment reported at 2005 (2) Mh.L.J. 900 (Sai Chalchitra .vrs.
Commissioner, Merut Mandal and others), for said purpose. Learned
Counsel points out that in present facts, respondent no.2 Minister
revived the issue which was legally decided.
14. Shri Sharma, learned counsel for respondent no.5 and
learned A.G.P. for other respondents are opposing the arguments of
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Shri Mirza, learned Counsel. They state that present appellant entered
into the picture for the first time before the learned Single Judge in Writ
Petition No.1824/2009. Till then he was not having any role. After
dismissal of that writ petition on 01.07.2009 for want of locus, Letters
Patent Appeal No.337/2009 was disposed of because of failure to hear
the appellant, in adherence to that assurance the Hon'ble Minister has
extended opportunity of hearing and thereafter only finding that the
appellant is not a person aggrieved has been reached. Finding is
perfectly legal and valid.
15. It is contended that the appellant filed Writ Petition only
because of apprehension that his quota would be reduced. His
grievance cannot be looked into as it is not in public interest, and
hence he has to satisfy the ingredients of the concept of person
aggrieved. Judgment of Hon'ble Apex Court reported in case of M.S.
Jayarao .vrs. Commissioner of Excise, Kerala and others (supra), is
delivered by the Hon'ble Two Judges and it in no way dilutes the
concept of "person aggrieved", in Jasbhai Motibhai Desai .vrs. Roshan
Kumar Haji Bashir Ahmed & others (supra). That concept therefore,
has been rightly applied by the learned Single Judge. In M.S. Jayarao
.vrs. Commissioner of Excise, Kerala and others (supra), the Hon'ble
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Apex Court has interfered only because it found that the order of the
Authorities permitting opening of a shop in a particular area beyond the
jurisdiction was null and void. They also rely upon the Division Bench
judgment of this Court reported at 2003 (5) Mh.L.J. 484 (Mukesh
Dattopant Mudgal and others .vrs. Collector, Nagpur and others) to
substantiate their contentions. Judgment of Division Bench of this
Court in case of Prashant Amrutrao Tayade .vrs. The Hon'ble Minister
for Cooperation and others (supra), is urged to be in favour of
respondents and against the petitioner.
16. While disposing of the Letters Patent Appeal No. 434/2011
on 11.09.2012, this Court has noted that there appeal was preferred by
a third person and it was not maintainable under Clause 15 of the
relevant Order. Here the relevant Order which is applicable is,
Maharashtra Kerosene Dealers Licensing Order, 1966. In the order
which was impugned before the learned Single Judge in Writ Petition,
the revenue authority i.e. the Hon'ble Minister has mentioned that he
was considering a review/revision under clause 15 of that Order.
Clause 14 therein is a provision for appeal, and there person who is
refused a licence or renewal thereof or whose licence is cancelled or
suspended or then licensee whose security deposit is forfeited, can
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apply. It is obvious that, that view of the learned Single Judge was
upheld by us in Letters Patent Appeal No. 434/2011, therefore covers
this controversy also. It may be noted that similar view has been taken
by one of us (B.P. Dharmadhikari, J) in 2009 (5) BCR 910 (Mohamad
Aslam Abdul Razzak Suraiyya .vrs. Deputy Commissioner and others).
17. Here we are not concerned with any order passed in appeal
under Clause 14 of 1966 Order, because that order has been passed
several years back as against present respondent no.5. It was
maintained by the State Government in appeal on 05.09.1997. This
order dated 05.09.1997 was sought to be reviewed in proceedings filed
before the Hon'ble Minister. The Hon'ble Minister allowed that revision
on 20.09.2008. Facts leading to filing of Letters Patent Appeal No.
337/2009 and assurance of Government to hear the present appellant
recorded therein, are the events which we have noted above. Impugned
order dated 15.09.2010 has been passed thereafter. This order is under
Clause 15, which deals with review of revision. Clause 15[1] reads as
under;
"15 Review or revision.
(1) (a) Government may, on an application
made or suo moto at any time before the expiry of
two years from the date of any order passed by the
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licensing authority or any other competent authority
under this Order, call for the records of the
proceedings underlying such order for the purpose of
satisfying itself as to the legality or propriety of such
order or as to the regularity of such proceedings and
if it shall appear to the State Government that such
order of proceedings should be modified, annulled or
confirmed, it may pass such order as it deems it;
Provided that, no order shall be made
under this clause unless the person who is likely to be
aggrieved thereby has been given a reasonable
opportunity of stating his case.
(b) Government may on application made or
suo moto at any time before expiry of two years from
the date of any order passed by it in revision under
this clause may review such order if it is satisfied
about the reason to do so on any of the following
grounds, namely :-
(1) Discovery of new and important matter
of evidence which after the exercise of due diligence,
was not within the knowledge of the applicant or
could not be produced by him at the time when the
order was passed or order was made.
or.
(2) some mistake or error apparent on the
face of the record.
Or
(3) for any other sufficient reason.
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And upon such review if it shall appear to the State
Government that such order should be modified,
annulled or confirmed, it may pass such order it
deem fit;
(c) Order passed in review shall on no
account be re-reviewed."
Thus Clause 15[1] permits Government to exercise powers
under it, either on an application made or suo moto. Person who is
competent to make application either for review or revision and invoke
jurisdiction thereunder, is not specified. Proviso to this clause is
consequent. It prohibits the State Government from making an order
under Clause 15 unless persons likely to be aggrieved by such order is
given reasonable opportunity for stating his case. When this Clause 15
is read in contradistinction with Clause 14[1], it is apparent that such
person who is likely to be aggrieved by exercise of jurisdiction under
clause 15[1], is different. The concept of person likely to be aggrieved
employed in Clause 15[1] is obviously wider than Clause 14[1]. Appeal
under Clause 14[1] can be filed by a person holding licence or seeking
licence. That is not the requirement under Clause 15.
18. 1966 Order mentioned supra is framed in exercise of powers
conferred by Clauses (c), (d), (i) (ii) and (j) of sub-clause (2) of Section
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3 of the Essential Commodities Act, 1955 and all other enabling powers
of State Government. In exercise of same powers the State Government
has also formulated the Maharashtra Scheduled Commodities, Retail
Dealers License Order, 1979. In its Clause 2(l) it defines "Scheduled
Commodities" to mean, any of the commodities specified in Schedule-II.
Perusal of Schedule-II shows that it includes food grains like Wheat,
Rice, Sugar, Gur, Kerosene, Edible Oils and Pulses. The Hon'ble
Supreme Court has in its Constitution Bench judgment reported at AIR
1990 SC 1277 (Sitaram Sugar .vrs. Union of India), has recognized
right of a citizen to obtain essential articles at fair price and duty of
State Government to provide them. This judgment is under provisions
of Schedule Commodities Act and deals with fixation of price of Sugar.
But, then said concept can also be extended and needs to be followed in
case of kerosene, as kerosene is also a scheduled commodity, which is
subject to various restrictions in the interest of public at large. All
above provisions have been made for securing its proper distribution to
a common man at a fair price. In this situation, it is difficult to accept
that a person for whose benefit provision like Essential Commodities
Act, 1955 or then above mentioned Licensing Order or Regulation
Order have been made, has got more to say when it comes to
malpractice or defects in distribution of such commodities. As a citizen,
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he has every right to complain and the government authorities
entrusted with obligation of overseeing the effective implementation of
various welfare measures and duty bound to redress his grievance.
19. Appeal is a statutory remedy and therefore, needs to be
construed in the light of the legal provisions. Rule 14 of the 1966
Order does not enable a citizen to file an appeal, however, that does not
mean that such citizen has no right to err his grievance. He can
complain to the authorities which issues license, releases quota and
mandatory working of such dealers, retailers or fair price shop. If his
grievance is not redressed, he can also approach the higher authorities.
The power under Clause 15 of review or revision with government is
very wide and the government can exercise that power suo-moto.
Clause 15[1] deliberately does not prescribe a person who can make
application to invoke that jurisdiction. Thus, anybody can invite
attention of State Government to a malpractice in distribution of such
essential commodity or scheduled commodity. Only limitation therein,
is such application or suo moto cognizance can be taken within a period
of two years from the date of any order passed by the Licensing
Authority or any other competent Authority under 1966 Order. A
person ventilating his grievance points out to the licensing authority the
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lapses or latches or defaults committed by the license holder and that
authority or the authority receiving grievance is expected to enquire
into it in accordance with law. If that authority is satisfied about the
genuineness of the grievance made, the authority can in terms of the
terms and conditions of license issued, pass necessary orders. If the
orders are to the prejudice of the licence holder and fall in the category
of orders envisaged under Clause 14[1], such licence holder can file an
appeal. If the orders are of other nature and person making the
grievance feels that his grievance is not fully redressed, he can
challenge that order within time of two years by invoking the revisional
powers.
20. In appropriate circumstances, he can seek review also. It is
also possible that the licence holder who is aggrieved by the order of
the Appellate Authority under Clause 14[1] may seek revision under
Clause 15[1] or can also seek a review. However, time limit mentioned
therein needs to be adhered.
21. Thus, it is seen that the government has intentionally
retained that duty and power to be exercised in public interest in
appropriate circumstances. Proviso to Clause 15[1] does not refer
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licence holder alone, as person aggrieved. It forces that such order in
review or revision may operate to the prejudice of some other person
also. Such other person may be a complainant or a card holder, who
has made the grievance, and whose grievance was redressed. We
therefore, find that remedy of filing a review or revision before the
State Government in accordance with Clause 15 of the 1966 Order is
not confined to a licence holder or licence seeker, but is available to
even a complainant or card holder or a person who can be aggrieved in
the matter. Person aggrieved needs to be given a wider and liberal
interpretation looking to the object with which 1966 Order has been
framed.
22. In Mukesh Dattopant Mudgal and others .vrs. Collector,
Nagpur and others (supra), the Division Bench of this Court has found
that a rival in business has no locus standi to challenge grant of licence
to another on the ground that it was granted illegally or it suffered from
defect of jurisdiction. There the Municipal Council, Umred gave no
objection certificate of setting up a Chilly Grinding machine and it was
cancelled by the Municipal Council later on. The Collector, in exercise
of powers under Section 308 of the Maharashtra Municipal Council,
Nagar Panchayats and Industrial Township Act, 1965 suspended that
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resolution. The Regional Director (Higher Authority) held that no
objection certificate was granted without considering the report of the
Committee constituted for said purpose. The Municipal Council
thereafter passed another resolution to issue NOC. Petitioners
approached this court and this Court noted that the petitioners were
thus running the chilly grinding machine in same area. Petitioner no.1
was Vice President of the Municipal Council, who had not objected to
other 25 chilly grinding machine in same town, and had objected to
NOC issued only in one matter. Petitioner no.6 was also running same
business in same area and petitioner no.1 had not raised any objection
against petitioner no.6. In this background, the above observations
have been made.
23. Judgment of Hon'ble Supreme Court in case of Jasbhai
Motibhai Desai .vrs. Roshan Kumar Haji Bashir Ahmed & others
(supra), considers grant of no objection certificate issued in violation of
Rules to location of Cinema Theater and its quashing under Article 226
by the High Court by issuing writ of certiorari. It has been held that a
rival in trade has no jurisdiction to invoke certiorari jurisdiction. This
judgment is delivered by Hon'ble 4 Judges of Hon'ble Supreme Court.
In later judgment, in case of Sai Chalchitra .vrs. Commissioner, Merut
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Mandal and others (supra), the Hon'ble 2 Judges have considered the
similar issue, where a rival Video Parlour owner sought cancellation of
license on account of violation of statutory rules. Though the Hon'ble
Two Judges have not referred to above mentioned earlier judgment of
Hon'ble Supreme Court, they have noted that High Court dismissed the
writ petition because of absence of locus in petitioner, as a rival in
trade. The Hon'ble Judges have opined that the High Court erred in
dismissing writ petition on said ground. Though the appellant before it
and respondent no.3 were in same business, the appellant had a right to
seek cancellation of license granted to respondent no.3, being in
violation of U.P. Regulation of Cinema Act, 1955 and Rules framed
thereunder.
In M.S. Jayarao .vrs. Commissioner of Excise, Kerala and
others (supra), the Hon'ble 2 Judges have noted these earlier judgments
delivered by the Hon'ble Supreme Court and found that the concept of
locus standi has been expanded and High Court had recorded a finding
that order of Excise Commissioner was in violation of Law. In
paragraph no.13 of this judgment the Hon'ble Supreme Court therefore,
did not find it proper to nip the motion out solely on the ground of
locus standi.
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24. Shri Sharma, learned Counsel for respondent no.5 has urged
that view taken by the Hon'ble Supreme Court in Jasbhai Motibhai
Desai .vrs. Roshan Kumar Haji Bashir Ahmed & others (supra), has not
been diluted by later two judgments. We find that the later two
judgments take note of violation of legal provisions and mean to do
substantial justice.
25. Division Bench of this court in Prashant Amrutrao Tayade
.vrs. The Hon'ble Minister for Cooperation and others (supra), had
occasion to consider similar challenge vis-a-vis provisions of the
Maharashtra Cooperative Societies Act. One of us (B.P. Dharmadhikari,
J) is party to that judgment. In that judgment, the above mentioned
Larger Bench Judgment of Hon'ble Supreme Court along with some
other judgments of Hon'ble Supreme Court have been considered and
judgment of learned Single Judge dismissing the Writ Petitions on the
ground of absence of locus is found unsustainable. Judgment in M.S.
Jayarao .vrs. Commissioner of Excise, Kerala and others (supra), is also
looked into in said judgment. It has been found that the appellant
before this Court in that matter could not have been treated as mere
busybody. In view of this judgment and view taken, we do not find it
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necessary to refer to all these judgments at length again in the present
matter.
26. In 2011 (3) Mh.L.J. 826 (Sanjay Khanderao Surwase .vrs.
State of Maharashtra and others), the Division Bench of this Court has
considered the provisions of 1966 Order only and noted that kerosene
quota of objector was reduced. In view of this, said Division Bench
concluded that said objector had locus and their rights were affected by
the impugned order by which applications for renewal of license made
by the applicants were allowed. In addition, it has noted that those
objectors were added as respondent in review application itself and they
were heard by the Minister. It has been concluded that therefore, they
had locus to file petitions challenging the orders passed by the Minister
in revision applications.
Another Division Bench in judgment reported at 2010 (4)
Mh.L.J. 82 (Ramprasad Ramchandra Chavan .vrs. State of Maharashtra
and others), while considering the provisions of Maharashtra
Scheduled Commodities (Regulation of Distribution) Order, 1975
clause 24 have found that a complainant before the District Supply
Officer and intervenor before commissioner possess necessary locus and
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objection to his locus standi deserved no cognizance. In view of the
discussions already undertaken above, which necessitates liberal
interpretation of the words "person who is likely to be aggrieved
thereby" in Clause 15[1] of 1966 Order, it is apparent that the present
appellant who is having a license to operate in very same area and
apprehends reduction in his quota because of introduction of another
licence holder in it, definitely possess locus to approach the State
Government under Clause 15[1]. It was obligatory for the State
Government to hear him as order passed/being passed in review sought
by the respondent no.5 is likely to affect him. Even if arguments of Shri
Sharma, learned counsel that this condition of quota being adversely
affected is only an apprehension, which is misconceived. Whether such
an apprehension has got any substances or not, is the question which
cannot be decided without hearing the appellant. Appellant, therefore,
needed to be heard on merits by the learned Single Judge to find out
whether his apprehension had any basis in law or not ?
27. Shri Mirza, learned counsel has attempted to show to this
court that the business as a Semi Wholesaler being controlled one,
always a specified quantity of kerosene is released as quota and it is
required to be sold at pre-determined rate. The business, therefore,
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cannot be viewed as a open business which has been looked into by the
Division Bench in judgment in case of Mukesh Dattopant Mudgal and
others .vrs. Collector, Nagpur and others (supra) or then by the larger
Bench of the Hon'ble Supreme Court in case of Jasbhai Motibhai
Desai .vrs. Roshan Kumar Haji Bashir Ahmed & others (supra). He
contends that inherent restrictions in such controller business of an
essential or scheduled commodity are sufficient to cloth the appellant
with necessary locus to point out that there was vacuum after following
prescribed procedure, he has been selected as a Dealer for Murtizapur.
Exercise of review jurisdiction almost after 11 years by the State
Minister behind his back is, therefore, unsustainable. As learned Single
Judge has not considered all these aspects, we find ourselves not in a
position to record any finding on it.
28. In this view of the matter, we find that the petitioner
/present appellant needed to be heard on merits of his challenge by the
learned Single Judge in Writ Petition No. 5993/2010. The finding that
said petition is not a aggrieved person is, unsustainable. Same is
accordingly quashed and set aside.
29. In view of this, the order dated 13.07.2012 in Writ Petition
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No. 5993/2010 is quashed and set aside. Writ Petition is restored back
to the file of the learned Single Judge for taking fresh decision on
merits of the controversy involved therein. Interim orders granted in
Writ Petition to continue.
30. Letters Patent Appeal is thus allowed in the aforesaid terms.
However, in the facts and circumstances of the case, there shall be no
order as to costs.
JUDGE JUDGE
Rgd.
