Samadhan S/O. Tukaram Wadhe vs The Honourable Minister, Food, ...
2016 Latest Caselaw 3412 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 




                                                          
                              NAGPUR BENCH, NAGPUR

                                  WRIT PETITION No. 6674 OF 2015




                                                         
    Samadhan s/o Tukaram Wadhe,
    aged about 46 years,Occu. Labour,
    R/o at village Rohinkhed, 
    Tah. Motala, Dist. Buldhana.      ...                            ...              Petitioner. 




                                               
                                   ..versus..

    1.     The Hon'ble Minister,
                                   
           Food, Civil Supply and Consumer Protection, 
           Mantralaya,Mumbai-32
                                  
    2.     The Deputy Commissioner (Supply),
           Amravati Division,Amravati.

    3.     The District Supply Officer,
       


           Buldhana, Tah.& Dist. Buldhana. 
    



    4.     Ukha s/o Supda Kachore,
           Aged about 55 years, Occu. Business, 
           R/o at village Rohinkhed, 
           Tahsil Motala, Dist. Buldhana....                         ...         Respondents.  





                                                AND

                                  WRIT PETITION No. 6719 OF 2015

    Samadhan s/o Tukaram Wadhe,





    aged about 46 years, Occu. Labour,
    R/o at village Rohinkhed, 
    Tah. Motala, Dist. Buldhana.       ...                           ...              Petitioner. 

                                   ..versus..

    1.     The Hon'ble Minister,
           Food, Civil Supply and Consumer Protection, 
           Mantralaya,Mumbai-32


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    2.        The Deputy Commissioner (Supply),




                                                                                                      
              Amravati Division,Amravati.

    3.        The District Supply Officer,
              Buldhana, Tah.& Dist. Buldhana. 




                                                                                                     
    4.        Ukha s/o Supda Kachore,
              Aged about 55 years, Occu. Business, 
              R/o at village Rohinkhed, 
              Tahsil Motala, Dist. Buldhana....                                                                      ...         Respondents.  




                                                                              
    .......................................................................................................................................................

Mr. N.B. Kalwaghe,advocate for the petitioner.ig Ms. T. Khan, Assistant Govt. Pleader for respondent nos. 1 to 3. Mr. P.S. Kshirsagar, advocate for respondent no.4. ................................................................ .......................................................................................

                                                            CORAM                 :  A.S. CHANDURKAR, 
                                                                                                            J.
                                                            DATED                 :  28 th  
                                                                                              JUNE,  2016.
       

    ORAL JUDGMENT
    

Since common issues arise in both the writ petitions, they are

being decided together by issuing Rule and making the same returnable

forthwith with consent of counsel for the parties. For the sake of

convenience, the facts in Writ Petition No. 6674/2015 are being referred to.

2. The respondent no.4 was granted authorization to run a fair

price shop. On the basis of various complaints received, the Supply Inspector

held an inquiry and noticed various irregularities. On that basis, the

Tahsildar issued a communication to the District Supply Officer proposing

suspension of the licence issued to the petitioner on the ground of serious

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charges. After issuing a show cause notice to respondent no.4, the District

Supply Officer came to the conclusion that the said respondent no.4 had

committed various irregularities while running the fair price shop. Hence, by

order dated 8.12. 2014 his licence came to be cancelled. The respondent

no.4 preferred a revision before the Deputy Commissioner ( Supplies) and by

order dated 10.3.2015 the said revision application was partly allowed. The

licence of the respondent no. 4 was restored by imposing fine of Rs.1,000/-

and by forfeiting the security deposit. This order came to be challenged by

the petitioner before the State Government. The said revision application

came to be dismissed and the order passed by the Deputy Commissioner

( Supplies) came to be maintained. Hence, the present revision petition.

3. Shri N.B. Kalwaghe, the learned counsel for the petitioner in

both the writ petitions submitted that considering the serious irregularities

committed by the respondent no.4, the District Supply Officer had rightly

cancelled his licence. He submitted that the Deputy Commissioner

(Supplies) had also noted that there were certain serious charges. However,

he merely imposed a fine of Rs.1,000/- and directed forfeiture of the

security deposit. According to him, such course could not have been

followed considering the nature of serious irregularities. According to him,

as per the Government circular dated 12.11.1991 various irregularities in the

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matter of running fair price shops had been categorized into minor

irregularities, medium irregularities and serious irregularities. He submitted

that two of the charges on the basis of which the inquiry was held were

serious and therefore the punishment as prescribed in said Government

circular of cancelling the licence ought to have been imposed. He relied

upon the judgment of the Division Bench in (Ramprasad s/o Ramchandra

Chavan Vs. State of Maharashtra and others) 2010(4) Mh.L.J. 82 as well as

judgment of learned Single Judge in (Sushilabai Manoharrao Kulkarni Vs.

Kachruappa s/o Laxmanappa Tamshete and others) 2008(1) Mh.L.J. 825

and submitted that mere imposition of fine was not justified in the facts of

the case. In these facts therefore the licence could not be restored. The

ground on which the State Government dismissed the revision application

was also without any legal basis. He, therefore, submitted that the order

passed by the District Supply Officer deserves to be restored.

4. Shri P.S. Kshirsagar, the learned counsel for the respondent

no.4, supported the impugned order. According to him, the Deputy

Commissioner ( Supplies) as well as the State Government rightly set aside

the cancellation of the licence and directed imposition of fine. According to

him, there were no complaints about the manner in which the fair price shop

was being run. The statements on the basis of which the action was initiated

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were not supplied to the respondent no.4. These documents were received

from the record of the Deputy Commissioner (Supplies). In that

background, he submitted that the conclusion recorded by the Hon'ble

Minister in the impugned order was justified. He, therefore, submitted that

there was no case made out to interfere in writ jurisdiction.

5. Ms. T. Khan, the learned Assistant Government Pleader

appeared for respondent nos. 1 to 3 and relied upon the affidavit filed on

record.

6. I have heard the learned respective counsel for the parties at

length and have given due consideration to their respective submissions.

The District Supply Officer on the basis of various charges held an inquiry in

the matter and on noting that the respondent no. 4 had committed breach of

the terms and conditions on the basis of which the licence was issued,

proceeded to cancel the same. The finding that two of the charges relating to

misappropriating food grains and not maintaining the records were found to

be serious also by the Deputy Commissioner (Supplies). After recording this

finding, the Deputy Commissioner ( Supplies) however proceeded to restore

the licence of the respondent no.4 without any legal basis. In this

background, it would be necessary to refer to the Government circular dated

12.11.1991. As per this circular, the manner in which licence could be

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granted and the further action to be taken in case of any breach committed

has been laid down. With regard to serious irregularities such as

misappropriation of stock, selling the food grains at a higher price and not

maintaining the registers as per the prescribed norms, the punishment of

cancellation of licence and forfeiture of security deposit has been prescribed

even if a single such charge is proved. As noted above, the Deputy

Commissioner (Supplies) has noted in the order passed by him that there

were two serious charges with relation to misappropriation of food grains

and not maintaining proper records. It is then observed that though these

charges are denied, the same appear to be probable. After recording this

finding, the said Authority has reduced the punishment. It is also to be

noted that these findings recorded by the Deputy Commissioner (Supplies)

were not challenged by the respondent no. 4 and it was only the petitioner

who was aggrieved by the said order. In the light of the aforesaid

Government circular dated 12.11.1991, the Hon'ble Minister ought to have

taken the same into consideration while deciding the revision application

preferred by the petitioner. The same has, however, not been done.

7. As regards the contention that the statements/complaints were

recorded without the copies of the same being supplied to respondent no.4,

no finding in that regard has been recorded by the Deputy Commissioner

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(Supplies). It has only been observed that the statements if any, can be

recorded in presence of the licence holder. However, the order passed by

the District Supply Officer has not been set aside on that count. Be that as it

may, as the order passed by the Deputy Commissioner (Supplies) as well as

the subsequent order passed by the Hon'ble Minister does not take into

consideration the Government circular dated 12.11.1991, in the facts of the

present case, it would be appropriate if the proceedings are reconsidered by

the Deputy Commissioner (Supplies). The grounds regarding failure to

supply copies of the statements recorded and prejudice if any can be

considered by the said Authority. The law laid down by this Court which has

been relied upon by the learned counsel for the petitioner can also be taken

into consideration when the proceedings are decided afresh.

In view of aforesaid, the following order is passed.

8.

(i) The order passed by the Deputy Commissioner (Supplies) and the subsequent order passed by the Hon'ble Minister ( Food, Civil Supplies and Consumer Protection) are set aside.

(ii) The proceedings are remanded to the Deputy Commissioner ( Supplies) to decide the appeal preferred by the licence holder in the light of observations made in this order.

(iii) The appeal shall be decided expeditiously and within the period of two months from the date of appearance of the parties before it. The parties shall appear before the said Authority

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on 11th July, 2016.

(iv) Till the appeal is decided, the respondent no. 4 who is presently running the said fair shop shall continue to do so. However,

this continuation is without prejudice to the rights of the parties and subject to the outcome of the proceedings in the appeal.

(v) The writ petitions are disposed of in above terms, with no order as to costs.

JUDGE

Hirekhan

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