Bombay High Court
Sharin Mahila Bachat Gut Thr Its ... vs The State Of Maharashtra Thr Its ... on 25 January, 2024
1 7- W.P. No. 174-2024.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 174 OF 2024
Sharin Mahila Bachat Gut Thr Its President Farakhat Khatoon Rauf
Khan
....Petitioner
VERSUS
The State Of Maharashtra Thr Its Secretary And Ors
.....Respondent
.....
Advocate for the Petitioner : Mr. N.R. Pawade
AGP for Respondent Nos. 1 to 3: Mrs. R. R. Tandale
Advocate for Respondent No.4 : Mr. A. M. Kulkarni
....
CORAM : S. G. MEHARE, J.
DATE : 25.01.2024
PER COURT :
1. Issue notice to the respondents. The learned AGP waives
service of notice for respondent Nos. 1 to 3. Respondent No.4 has already
filed the affidavit in reply.
2. The learned counsel for the petitioner would submit that the
Government had allotted a Fair Price Shop license to the petitioner. However,
respondent No.4 had filed the Writ Petition before this Court against the
allotment of the Fair Price Shop. However, the said Writ Petition was not
pressed. Thereafter, respondent No.4 approached the Deputy Commissioner
(Supply), Chhatrapati Sambhajinagar. The Deputy Commissioner heard the
matter only on the application of condonation of delay. The Deputy
Commissioner (Supply) dismissed the application for condonation of delay
without touching the merits. Against the said order, respondent No.4
approached the Hon'ble Minister of Civil Supply Mantralaya. It is the
contention of the petitioner that the Hon'ble Minister has decided the matter
on merit without touching the issue of delay and partly allowed the petition
and thereby directed the District Supply Officer to proceed with allotting the
Fair Price Shop to respondent No.4. The serious objection of the petitioner is
that when the issue before the Hon'ble Minister was limited to the delay
condonation. The Hon'ble Minister ought not to have considered the matter
on merit. There were no orders of the authority on merits; hence, prima facie,
the order of the Hon'ble Minister is illegal. Hence, it is liable to be stayed.
3. The learned counsel for respondent No.4 submits that the learned AGP
may support the orders. She opened with irrelevant arguments. The learned
AGP did not even open his mouth, and she started alleging him.
4. She did support the impugned order. She read Clause 24 of the
Maharashtra Scheduled Commodity ( Regulation and Distribution) Order
1975 and vehemently argued that the State Government/Hon'ble Minister has
unfettered powers to pass any order as he deems fit. The Hon'ble Minister has
the power to call for the record suo moto and pass appropriate orders if the
illegality has been noted. Those are the unfettered powers of the Hon'ble
Minister to set aside the illegality and maintain the regularity in the
distribution system. Since he has the power to pass such order as he thinks
fit, he may consider the matter on merit, though the authority did not pass the
order on merits. She has argued that the Hon'ble Minister can do anything.
The powers of the Hon'ble Minister cannot be curtailed. He can deal with the
issue on merit, though the application for delay was rejected.
5. Respondent No.4 has specifically prayed in her petition that the order
of the District Supply Officer granting license to the petitioner dated
25.10.2021 be cancelled. Respondent No. 4 was at serial no.4, and the
petitioner was below them. The Bachat Gat of respondent No.4 was
registered in 1995. However, the petitioner's Bachat Gat was not even
registered. The petitioner never objected to the revision memo, saying that
the revision memo should be only to the extent of delayed condonation.
6. She suddenly changed the track and started arguing that the petitioner
had not removed the office objections and did not produce the Government
Resolution dated 6.7.2017, which was most important. She has also argued
that since the office objections were not removed, the matter should be listed
only after the removal of the office objection for a final hearing.
7. If the stay is granted, it would be a final relief to the petitioner. She
has no objection to the alternate arrangement until the petition is disposed of.
This Court may make alternate arrangements. After the office objections have
been removed, this Court may list the matter for final hearing at the
admission stage.
8. Perused clause 24 of the above order. It speaks about the power of the
state Government/ Minister. No doubt the Hon'ble Minister has the power to
call for and examine the record and proceed to revise the order suo moto.
However, the said clause does not mention that the Minister has unfettered
powers. If any such proceeding was not before him, he could not pass any
order unless he called for the two sides and gave them an opportunity. In a
democracy, no one has absolute power. No officer or the authority has
unfettered powers to act as per his whims. The law binds every authority, and
everyone must follow it. The rule of law must be maintained. The
interpretation of clause 24 by the learned counsel for respondent No.4 is
unsustainable and illogical. The small question is whether the Hon'ble
Minister can go into the merits when there were no findings of the
subordinate authority on merits.
09. Respondent No.4 knew well that their application for condonation of
delay was rejected without touching the merit, and they impugned the said
order. Factually, respondent No.4 tried to mislead the authority by making
prayer on merit. In such circumstances, the petitioner was not supposed to
object to it. It was the duty of the authority to examine each order impugned
before it. No authority can travel beyond the law. That apart, the impugned
order of the Hon'ble Minister does not speak a single line on the delay
condonation. The petition is considered as if the subordinate authority has
passed the order on merit. It seems to be a mechanical order without going to
the facts of the case and adhering to the law. In view of the facts of the case
and the legal provisions, the Court is of the view that this is a fit case to grant
interim protection. Hence, the impugned judgment and order of the Hon'ble
Minister of Civil Suppl dated 17.02.2023 is stayed.
10. Stand over to 27.03.2024.
11. The learned counsel for respondent No.4 prayed that this order may be
stayed for two weeks. Considering the merits of the case, if this order is
stayed, the petitioner may lose his business. He has been running the business
for the last two years, and ultimately, the consumers may also suffer
irreparable injury. Since respondent No.4 did not have any business, they will
not suffer any loss. In the circumstances, staying the order for two weeks will
be inappropriate. Hence, the prayer is rejected.
( S. G. MEHARE )
JUDGE
ysk/
