Delhi High Court
M/S Brij Kod vs The Commissioner, Food And ... on 27 August, 2001
Author: M Mudgal
Bench: M Mudgal
ORDER
Mukul Mudgal, J.
1. The learned counsel for the respondents 1 and 3 raises a preliminary objection that the appropriate remedy for the petitioner is to file an appeal before the Financial Commissioner and not come to this Court under Article 226 of the Constitution. The learned counsel for respondent No. 3, however very fairly stated that there is no Financial Commissioner who is functioning in Delhi today. In this view of the matter the preliminary objection losses it efficacy as it is the respondent No. 3 who is to appoint the Financial Commissioner. The respondent No. 3 cannot on the one hand decline to perform the duty to appoint the Financial Commissioner and on the other hand take up the plea that an alternate plea is available. In this view of the matter this plea of maintainability if rejected.
2. Pleading are complete.
3. Rule.
4. Heard the learned counsel for the parties.
5. The petitioner had been an applicant for the allotment of a kerosene oil depot (hereinafter referred to as 'KOD') pursuant to applications invited in November 1999 by respondents 1 to 3. Out of 16 original applicants 5 including the petitioner were approved and referred to the Board by the Screening Committee on 5th May 2000. The Selection Board however found, respondent No. 4, Rajiv Kumar of Pankaj KOD to be more suitable then the other applicants including the petitioner. On 5th May 2000 the respondent No. 2, the Assistant Commissioner, Food & Civil Supplies, passed an order granting license to Rajiv Kumar of M/s Pankaj KOD and refused to grant the license to the other 4 applicants. The said order was carried on in the appeal to the Commissioner,. Food & Supplies but by the impugned order dated 23rd June 2000 he disposed of the appeal of the petitioner. The relevant portion of the order dated 23rd June 2000 reads as under:
"It would appear that the floor area capacity, educational qualifications, width of the approach road and the financial capacity are more than the minimum required in all the four cases. No evidence has been brought on record to show that Sh. Ashok Kumar of M/s Ashoka KOD is functioning as a property dealer or Shri Paraveen Tomar of M/s Shiv KOD is connected with KOD license No. 1549 in circle 12 in any manner.
It has been ascertained that excluding 172 non genuine cards, 3081 blue cards are required to be served in the area.
In the above circumstances a decision needs to be taken on the basis of the location of the proposed places of business within the notified aqrea as proposed by the competing applicants. The sketch showing the location of the places of business proposed by the competing applicants is placed on record.
Keeping the convenience of the card holders and the distance required to be commuted by them for obtaining supplies it would appear that in addition to existing KODs, M/s Gupta KOD (1851/78), M/s Shanti KOD (3764/94) and the newly licensed M/s Pankaj KOD (4258/2000), if an additional license is granted to M/s Shiv KOD, Prop. Shri Praveen Tomar, there will be proper disbursal of KODs in the notified area.
In the aforesaid circumstances, the LD. Asstt. Commissioner (West) is directed to grant the license applied for by Shri Praveen Tomar of M/s Shiv KOD in addition to the license granted to Shri Rajiv Kumar of M/s Pankaj KOD.
The appeals filed by Shri Ashok Kumar of M/s Ashoka KOD and Shri Niraj Singh of M/s Brij KOD are dismissed."
6. The above order is challenged by the petitioner, M/s Brij KOD, on the ground that in the above order the Commissioner has not considered the case of petitioner as set out in appeal and has merely granted an additional license to Shiv KOD in addition to that granted to M/s Pankaj KOD. There is merit in the plea of the petitioner as the order does not appear to give any reason for declining the appeal of the petitioner and on the contrary grants the additional license to M/s Shiv KOD. Learned counsel for the respondents 1 to 3 has contended that Section 8(4) of the Delhi Kerosene Oil (Export & Price) Control Order 1962, which reads as under:
8(4) The Commissioner Food and Supply, Delhi may after giving the parties to the appeal an opportunity of being heard, confirm, vary or set aside the order appeal from or pass such other order as he may deem fit.
Permits the Commissioner to vary the impugned order and consequently the phrase "vary" also include the power to issue one more license.
7. At this stage it is not necessary to deal with the sustainability of this plea because I find that the impugned order dated 23rd June 2000 does not record any reason whatsoever for dismissing the petitioner's appeal. Accordingly it is made clear that while setting aside the impugned order in appeal at this stage I am not interfering with the grant of license to M/s Pankaj KOD. Similarly the license of Shiv KOD is also to continue purely as a interim measure so as to avoid inconvenience to consumers. The Commissioner is directed to dispose of the appeals in respect of M/s Brij KOD (68/2000) and M/s Shiv KOD (65/2000) on or before 30th September 2001 with a reasoned order. The petitioner will be entitled to challenge any order passed by the Commissioner, Food & Supplies, Delhi in accordance with law.
8. The writ petition is accordingly disposed of.
9. The parties to appear before the Commissioner, Food & Supplies, Delhi on 5th September 2001.
