Bhimrao S/O Eknath Borkar vs Jitendra S/O Bhojraj Lilhare & 3 ...
2017 Latest Caselaw 2879 Bom

                                                  1              WP2101.00.odt

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH, NAGPUR

                          WRIT PETITION NO. 2101 OF 2000


            Bhimrao Eknath Borkar,
            aged about 32 years, Occ. Fair Price
            Shop Keeper, R/o. Pipriya, Tah. Tirora,
            Distt. Gondia (Old Distt. Bhandara)  ......                      PETITIONER

                                 ...VERSUS...

 1.         Jitendra Bhojraj Lilhare,
            aged about 22 years, Occ. Agriculturist,
            R/o. Pipriya, Tah. Tirora,
            Distt. Gondia (Old Distt. Bhandara).

 2.         The Commissioner, Nagpur.

 3.         The Sub Divisional Officer, Gondia,

 4.         The State of Mah. Through its Secretary,
            Food, Civil Supply and Consumer Protection
            Department, Mantralayta, Mumbai  ......          RESPONDENTS

 -------------------------------------------------------------------------------------------
 Shri V.R.Borkar, counsel for Petitioner.
 None for respondent No.1
 Shri V.P.Maldhure, AGP for Respondent nos. 2 to 4
 -------------------------------------------------------------------------------------------
                          CORAM: R. K. DESHPANDE, AND
                                        Mrs. SWAPNA JOSHI, JJ.

th DATE : 7 JUNE, 2017 .

ORAL JUDGMENT (per Deshpande, J.)

1] The petitioner was allotted fair price shop, as his

name appeared in the priority list as a candidate belonging to

2 WP2101.00.odt

Scheduled Caste Category under Clause 3-A (1) (B) of the

Maharashtra Scheduled Commodities (Regulation of

Distribution) Order, 1975, (in short "the said Order of 1975)

by the order passed by the Additional Collector, Gondia, on

25.10.1999. This was challenged by the respondent No.1

before the Commissioner (Supply), Nagpur Division, Nagpur,

in Revision under clause 24 of the said Order, which was

registered as R.P.No. 58/1999-2000. On 24.05.2000, the

Deputy Commissioner (Supply) who dealt with the Revision,

set aside the order passed by the Additional Collector and

directed that the respondent No.1 - Jitendra Bhojraj Lilhare,

belonging to 'Educated Unemployed' category, having

priority over the 'Scheduled Caste' as per the priority list

contained in the Government Resolution dated 20.03.1999,

was entitled to allotment of fair price shop. The order directed

the Sub Divisional Officer to take appropriate steps in the

matter and accordingly, the Sub Divisional Officer passed an

order on 03.06.2000 in favour of the respondent No.1.

2] The petitioner has preferred this writ petition,

challenging the order dated 24.05.2000 passed by the

Deputy Commissioner, the order dated 03.06.2000 passed

by the Sub Divisional Officer, Gondia, along with the

3 WP2101.00.odt

Government Resolution dated 20.03.1999, which has been

acted upon by the Deputy Commissioner to decide the

entitlement of respondent No.1.

3] Shri Borkar, the learned counsel for the

petitioner has urged before us that in the Maharashtra

Scheduled Commodities (Regulation of Distribution) Order,

1975, there is no priority given to the 'Educated Unemployed'

person belonging to caste or tribe other than Scheduled

Caste or Scheduled Tribes over the persons belonging to

Scheduled Caste or Scheduled Tribe for issuing the

authorization to the ration shops. He submits that the

petitioner belongs to Scheduled Caste category, which is

given priority at Sr.No.4 in clause (3-A) (1) (B) of other areas.

In normal circumstances, the petitioner would get allotment

being a candidate of Scheduled Caste category.

4] Shri Borkar, the learned counsel for the

petitioner, does not dispute that such a priority is changed by

the State Government by issuing Government Resolution

dated 20.03.1999 (in short "the said Government Resolution),

in terms of which respondent No.1 was entitled to priority as

a person belonging to 'Educated Unemployed' category over

4 WP2101.00.odt

the persons belonging to Scheduled Caste and Scheduled

Tribe category. It is the contention of Shri Borkar that by

issuing the said Government Resolution, the priority

prescribed under Clause (3-A) of the said Order of 1975

cannot be changed. He submits that if the priority is required

to be changed, then the said Order of 1975 is required to be

amended in accordance with the procedure prescribed for

that purpose and the Government Resolution contrary to the

said Order cannot be given effect for the purposes of

allotment of fair price shop to the respondent No.1.

5] Shri Borkar, the learned counsel further submits

that assuming for the sake of argument that the Deputy

Commissioner did not commit an error in relying the said

Government Resolution to consider the priority, the case of

the respondent No.1 was required to be further examined on

the basis of several conditions prescribed in the said

Government Resolution; one of which being that the

educated unemployed person proposed for allotment should

not have obtained the benefit meant for such persons under

the scheme framed either by the State Government or the

Central Government. He has invited our attention to the

specific ground of challenge raised on page No.7 of the

5 WP2101.00.odt

petition to the effect that the respondent No.1 has about an

year back, obtained a loan of Rs.1,00,000/- for running the

shop of kirana goods under the scheme of 'Educated

Unemployed' from the Prime Minister funds through Bank of

India, Paraswada, Tq. Tiroda, Distt. Gondia.

6] After going through the order passed in Revision,

we find that except the question of inconsistency between the

provisions of the said Order of 1975 and the said

Government Resolution, no other point has been dealt with

and therefore, we would concentrate our attention for the

decision of said point. As per the order passed in Revision,

the priority altered by the said Government Resolution has

been relied upon and the claim of the respondent No.1 as

belonging to the category of 'Educated Unemployed' has

been preferred over the petitioner who belongs to Scheduled

Caste category. Normally, the altered priority by the said

Government Resolution would not have precedence over the

priorities mentioned in the said Order of 1975 and in case of

conflict between two, there would be no hesitation to accept

the contention of Shri Borkar that the altered priority cannot

be acted upon in the face of statutory provision contained in

the said Order of 1975.

                                                6             WP2101.00.odt



          7]               With   the   assistance   of   the   learned   counsels

          appearing   for   the   parties,     we   have   gone   through   the

provisions of Sub-sections (1) and (2) of Section 3 and

Section 5 of the Essential Commodities Act, 1955. The said

Order of 1975 has been issued by the Food and Civil

Supplies Department of the State Government under

Section 3 of the Essential Commodities Act, in exercise of its

power delegated by the Central Government under Section 5

of the said Act by issuing notification dated 09.06.1978 which

is placed on record as Annexure-E to the petition. Relying

upon this delegation of powers, Shri Maldhure, the learned

AGP appearing for Respondent Nos. 2 to 4 has urged that

the said Order of 1975 has been issued by the State

Government and it recites that it has been issued with prior

concurrence of the Central Government.

8] Perusal of the Order of delegation dated

09.06.1978 reveals that the State Government is not required

to obtain the concurrence from the Central Government for

issuing order regulating licenses and permits under

Clause (d) of Sub-Section (2) of Section 3 of the said Act.

The requirement of obtaining of prior concurrence is in

7 WP2101.00.odt

respect of distribution or disposal of foodstuffs to places

outside the State or in regard to regulation of transport

of any foodstuff as stipulated under clause (d). It is after

issuance of this power of delegation on 09.06.1978, that the

provision of Clause (3-A) prescribing the order of priority to

be followed in issuing authorization to ration shops was

introduced in the said Order of 1975 by way of amendment

effected on 20.01.1992. Shri Borkar is unable to point out any

provision under the said Act requiring obtaining of prior

concurrence of the Central Government for altering the

priority for grant of or regulating the licenses and permits as

stipulated under Clause (d) of sub-section (2) of Section 3 of

the said Act.

9] In view of the aforesaid position, though we find

that there is a conflict in between the priority mentioned in

clause (3-A) of the said Order of 1975 and in the priority

mentioned in the said Government Resolution, the State

Government was competent to alter such priority without

obtaining prior concurrence of the Central Government in

terms of the Order of delegation dated 09.06.1978. We,

therefore, reject the contention of Shri Borkar that the State

Government was not competent to alter the priority by

8 WP2101.00.odt

issuing the said Government Resolution.

10] As pointed out earlier, Shri Borkar, the learned

counsel appearing for the petitioner, invited out attention to

the question of eligibility of the respondent No.1 to get an

order of allotment, particularly when the allegation is that

respondent No.1 has availed the benefit under one of the

schemes promulgated by the Central Government for

'Educated Unemployed' persons. This aspect has not been

dealt with by the Revisional Authority. Obviously, the case

was not tested on the other aspects of the matter. The

eligibility of the respondent No.1 is required to be judged on

the basis of the terms and conditions stipulated in the

Government Resolution dated 20.03.1999; more particularly

clause (3) in Condition No. 4 of the said Government

Resolution.

11] Consequently, the order impugned passed in

Revision and consequently the order passed by the Sub

Divisional Officer, both will have to be, therefore, quashed

and set aside with an order of remand of the matter back to

the Deputy Commissioner (Supply), Nagpur Division,

Nagpur, for considering the question of eligibility of

9 WP2101.00.odt

respondent No.1 for allotment of such fair price shop. The

parties shall be at liberty to raise all such points as are

available. The respondent No.1 can also raise the points in

defence and after hearing the parties, the Deputy

Commissioner (Supply) shall decide the matter.

12] In the result, the order dated 24.05.2000 passed

in Revision R.P.No. 58/1999-2000 is hereby quashed and set

aside alongwith the order dated 03.06.2000 passed by the

Sub Divisional Officer, Gondia. The matter is remitted back

to the Deputy Commissioner (Supply), Nagpur Division,

Nagpur, for decision in accordance with law, keeping in view

the observations made by this Court.

As a result of setting aside the order passed in

Revision, the order passed by the Additional Collector

continues to operate. The petitioner was protected by way of

an interim order passed by this Court, as a result he

continues to run the fair price shop. This position shall

continue to operate pending the decision of the Revision

before the Deputy Commissioner. The Deputy

Commissioner (Supply), Nagpur Division, Nagpur, shall

decide the matter within a period of six months from the date

10 WP2101.00.odt

of first appearance of the parties before it.

Rule is made absolute in above terms. No order

as to costs.

                                       JUDGE                 JUDGE


 Rvjalit