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The Essential Commodities Act, 1955

Bombay High Court
C vs Hon'Ble Minister, Ig on 15 January, 2013
Bench: S. S. Shinde

wp6796.12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 6796 OF 2012

Dattatraya Marotrao Sakhare

C

Age 40 years, Occ. Agriculture,

R/o. Konatha, Tq. Wasmat,

District Hingoli ...Petitioner Versus

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1. Hon'ble Minister, ig

Food and Civil Supply Department Maharashtra State Mumbai

2. The Deputy Commissioner (Supply) H

Aurangabad Division, Aurangabad

3. District Supply Officer,

Hingoli, District Hingoli

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4. Tahsildar Wasmat,

Tq. Wasmat, District Hingoli

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5. Pandit Kisanrao Bende

R/o. Konatha, Tq. Wasmat,

District Hingoli ...Respondents om

.....

Mr. Rahul Karpe, advocate for the petitioner Mr. S.D. Kaldate, A.G.P. For respondent Nos. 1 to 4 Mrs. M.A. Kulkarni with Mr. P.S. Magar, advocates for R. No.5. B

.....

CORAM : S. S. SHINDE, J.

DATED : 15th JANUARY, 2013

JUDGMENT :-

1. Heard.

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2. Rule. Rule made returnable forthwith. By consent, heard finally. rt

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3. This writ petition takes exception to the judgment and order dated 20.7.2012 passed by the Minister, Food, Civil Supply and C

Consumer Protection, Maharashtra State, Mantralaya, Mumbai in Revision Application No. 251-2012/NP-21. h

4. The background facts, as disclosed in the writ petition, are as ig

under:-

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The petitioner herein is original complainant. It is the case of the petitioner that alongwith present petitioner, various card holders from y

village Konatha, have made complaint to respondent No.4 i.e. ba

Tahsildar, Wasmat about commission of malpractice in distribution of essential commodities at the hands of respondent No.5 while running om

the fair price shop. It is the case of the petitioner that near about 70% of the card holders including the petitioner have made their grievance B

by filing application/complaint to respondent No.4 i.e. Tahsildar, Wasmat. It is further case of the petitioner that the contents of the complaint itself are serious in nature as respondent No.5 while distributing the essential commodities, has committed malpractice. The said complaint was filed on 11.11.2010 which was signed by various card holders. Alongwith the complaint several other independent ::: Downloaded on - 24/01/2013 22:23:50 ::: wp6796.12

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complaints were also addressed by the card holders to the Tahsildar, rt

Wasmat. In the said complaint, the petitioner alongwith other villagers ou

have requested the Tahsildar, Wasmat to make enquiry and to take steps towards proper distribution of essential commodities. C

It is further case of the petitioner that it is a matter of record that on 8.12.2010 respondent No.4 Tahsildar, Wasmat addressed a h

communication to respondent No.3 District Supply Officer, Hingoli by ig

specifically making a reference to the complaint of the petitioner H

alongwith card holders, dated 11.11.2010. In the said communication dated 8.12.2010, respondent No.4 Tahsildar, Wasmat has specifically stated that pursuant to the complaint of the card holders, a paper y

publication was given on 1.12.2010 and the local enquiry has also ba

been held by the Naib Tahsildar, Wasmat. It has been further contended in the said letter that the Naib Tahsildar has also recorded om

statement of card holders about distribution of essential commodities from the shop of respondent No.5. In the said communication, it is B

mentioned that serious deficiencies found in the said local enquiry. Respondent No.4 by way of said communication requested the District Supply Officer for appropriate action against respondent No.5 shop holder.

It is further case of the petitioner that in response to the ::: Downloaded on - 24/01/2013 22:23:50 ::: wp6796.12

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communication by the Tahsildar, respondent No.3 District Supply rt

Officer, Hingoli has followed further procedure by calling explanation ou

from respondent No.5 and thereafter the said authority was pleased to suspend the licence to run the fair price shop. C

It is further case of the petitioner that respondent No.5 being aggrieved and dissatisfied with the order of the District Supply Officer h

suspending the licence for running fair price shop, preferred revision ig

application before the Deputy Commissioner (Supply) Aurangabad H

Division, Aurangabad. The said authority remanded the matter back for reconsideration to respondent No.3 i.e. District Supply Officer, Hingoli. While remanding the matter back to respondent No.2, the y

Deputy Commissioner has drawn a conclusion that while suspending ba

licence of respondent No.5 further direction has not been given to respondent No.4 i.e. Tahsildar, Wasmat by respondent No.3 District om

Supply Officer, Hingoli. It has also been held that the norms laid down in the Government Resolution dated 12.11.1991 have not been B

properly followed while passing order by respondent No.3. It is further case of the petitioner that after remand, respondent No.3 District Supply Officer, Hingoli, after following proper procedure and considering guidelines in the G.R. dated 12.11.1991 as well as adverting to the statements of the respective parties dated 30.6.2011 ::: Downloaded on - 24/01/2013 22:23:50 ::: wp6796.12

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and 30.8.2011, passed order thereby cancelling the licence of rt

respondent No.5.

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5. Being aggrieved by the order of the District Supply Officer, C

respondent No.5 preferred revision application before respondent No.2 i.e. Deputy Commissioner (Supply), Aurangabad Division, Aurangabad in view of the provisions of Maharashtra Schedule Commodities h

Distribution Licensing Order 1975. The said authority by his order ig

dated 27.5.2012 has rejected the revision application filed by H

respondent No.5 and confirmed the order dated 3.9.2011 passed by the District Supply Officer, Hingoli. y

It is the contention of the petitioner that respondent No.2 Deputy ba

Commissioner (Supply) while rejecting the revision application filed by respondent No.5, did appreciate all aspects of the matter and om

considering the record available therein including order passed by the respective authorities, depositions, resolutions of Gram Panchayat etc. B

and in particular considering the seriousness of the allegations about corrupt and malpractices in the distribution system at the hands of respondent No.5, passed order thereby rejecting revision.

6. Being aggrieved by the order passed by the Deputy Commissioner (Supply), Aurangabad Division, Aurangabad, ::: Downloaded on - 24/01/2013 22:23:50 ::: wp6796.12

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respondent No.5 herein filed second revision before respondent No.1 rt

i.e. Minister, Food and Civil Supply department, Maharashtra State, ou

Mumbai bearing No. VAN-2012/PK 251-2012/NP 21. The Minister by the impugned judgment and order partly allowed the said revision. C

Hence, this writ petition.

7. Learned counsel appearing for the petitioner submits that h

revision has been allowed by respondent No.1 only on the ground that ig

one business opportunity needs to be given to respondent No.5. It is H

submitted that orders passed by respondent Nos. 2 to 4, statements of card holders, enquiry report, other voluminous documents and evidence which was part of the record, has been brushed aside by y

respondent No.1 while allowing revision application filed by respondent ba

No.5. It is submitted that no any independent reason has been shown or recorded by respondent No.5 based upon the available om

documentary evidence. It is submitted that order passed by respondent No.1 is yet to be implemented. It is submitted that B

respondent authorities i.e. Tahsildar, District Supply Officer after recording the findings based upon the material placed on record and in absence of any infirmity in the said findings, respondent No.1 partly allowed the revision filed by respondent No.5. Learned counsel submitted that Tahsildar, Wasmat after paper publication and inviting objections from the concerned, did make enquiry in the matter and ::: Downloaded on - 24/01/2013 22:23:50 ::: wp6796.12

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submitted his report to the District Supply Officer. The District Supply rt

Officer, after calling reply from respondent No.5, initially suspended ou

the licence and after remand by the Deputy Commissioner (Supply), after hearing all concerned and after appreciating material placed on C

record has cancelled the licence. It is submitted that the order passed by the District Supply Officer was after proper application of mind adverting to the report submitted by the Tahsildar, statements of card h

holders and other material ig placed on record. The Deputy Commissioner (Supply), after applying his mind to the facts of the H

case, did confirm the order passed by the District Supply Officer therefore, there was no occasion for the Minister to entertain second revision. It is submitted that, in the first place, based upon the material y

placed on record there are no reasons assigned by the Minister and in ba

second place only reason given by the Minister is that one business opportunity is required to be given to respondent No.5, which is not om

sustainable in law, since such observations/findings are without any basis.

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Learned counsel appearing for the petitioner invited my attention to the judgment of this Court in the case of Shivaji Tulshiram Thakre Vs. State of Maharashtra and others, reported in 2012 (3) ALL MR 789 and submitted that in the facts of that case, this court has taken a view that while exercising the powers of review, the Minister ::: Downloaded on - 24/01/2013 22:23:50 ::: wp6796.12

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concerned should not have restored the licence on humanitarian rt

ground and such exercise of power is not within the scope of review. ou

Learned counsel also invited my attention to para 3 of the said judgment and submitted that in the facts of that case, this Court has C

held that Minister should not have exercised the power of review and should not have allowed the review. Applying the ratio of the said judgment, counsel appearing for the petitioner submits that, in the h

facts of the present case also once first revision was rejected by the ig

Deputy Commissioner (Supply), the second revision at the instance of H

respondent No.5 by respondent No.1-Minister should not have been entertained. Therefore, learned counsel for the petitioner submitted that this petition deserves to be allowed. y

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8. Learned A.G.P. tried to justify the order passed by respondent No.1. However, when he was confronted with the query in respect of om

contents of the affidavit in reply filed by respondent Nos. 3 and 4 and in particular, paragraphs 7, 8 and 9 of the said reply, learned A.G.P. B

fairly concedes that the contentions in the said affidavit cannot be denied.

9. Learned counsel appearing for respondent No.5, across the bar, has tendered affidavit in reply, filed on behalf of respondent No.5. It is submitted that the action of suspension of licence to run fair price shop ::: Downloaded on - 24/01/2013 22:23:50 ::: wp6796.12

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or subsequent cancellation of licence by the District Supply Officer, rt

Hingoli was politically motivated. Respondent No.5 was not given ou

proper opportunity to defend his case while conducting the enquiry. The Tahsildar did not give copies of the alleged complaints received C

by him and enquiry conducted by the Tahsildar was without affording him proper opportunity of being heard. Therefore, the Minister did entertain the second revision at the instance of respondent No.5 and h

partly allowed the same. By way of impugned order, the Minister has ig

only given one more business opportunity to respondent No.5 and H

which will not cause prejudice to the other side. The sum and substance of arguments of counsel for respondent No.5 is that the order passed by the Tahsildar is without affording opportunity to y

respondent No.5 and the decision of cancellation of licence was ba

politically motivated. Therefore, learned counsel for respondent No.5 relying upon the contents of affidavit in reply and oral submission, om

would submit that this petition is devoid of any merits and the same may be dismissed.

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10. I have given careful consideration to rival submissions advanced by the parties. With the assistance of learned counsel appearing for the parties, I have perused the pleadings in the petition, annexures thereto, relevant provisions of law, affidavit in reply filed on behalf of the respondents and the judgment of this court, on which reliance is ::: Downloaded on - 24/01/2013 22:23:50 ::: wp6796.12

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placed by the counsel for petitioner. rt

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It is not in dispute that the enquiry was conducted and the report was submitted to the District Supply Officer. Initially the licence to run C

the fair price shop was suspended. The said order was assailed before the Deputy Commissioner (Supply), Aurangabad Division, Aurangabad, by respondent No.5 herein. The order of District Supply h

Officer was set aside and the matter was remitted back to the District ig

Supply Officer. On remand, the District Supply Officer after giving H

opportunity to all concerned has passed order cancelling licence to run fair price shop. The contention of respondent No. 5 that no opportunity was given is devoid of merits. It has come on record that the District y

Supply Officer did call explanation of respondent No.5 and after ba

adverting to his contention in the explanation, order came to be passed. The enquiry conducted by the Tahsildar was on the basis of om

the statements of the card holders. The said enquiry was conducted after inviting objections. The action of District Supply Officer to cancel B

licence is confirmed by the Deputy Commissioner (Supply) in the first revision. Therefore, the cancellation of licence of respondent No.5 was after enquiry by the Tahsildar. Not only that the district Supply Officer has applied his mind to the complaint of the various card holders. There are serious allegations against respondent No.5 and it has come on record that there was mismanagement, no proper ::: Downloaded on - 24/01/2013 22:23:50 ::: wp6796.12

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distribution of the essential commodities to the card holders. rt

Therefore, such enquiry after proper application of mind and adverting ou

to the material placed on record ought not to have been disturbed by respondent No.1 by partly allowing the revision. In the first place, C

second revision should not have been entertained at all. From perusal of the impugned judgment and order it appears that there are two reasons assigned by the Minister while partly allowing the revision filed h

by the respondent No.5 herein. The reasons assigned by respondent ig

No.1 finds place in para 6 of the impugned judgment. In para 6, H

respondent No.1 has accepted the contention of respondent No.5 that the allegations against respondent No.5 are politically motivated and made with malafide intention. However, respondent No.1 has y

observed that since deficiencies are found, during inspection of shop ba

of respondent No.5, fine of Rs.5000/- can be imposed and one business opportunity should be given to the respondent No.5 to run om

the fair price shop in future.

B

11. Upon careful perusal of para 6 of the impugned judgment, it is abundantly clear that though respondent No.1 accepted and held that certain deficiencies were found during inspection of the shop run by respondent No.5, therefore rightly imposed fine of Rs.5000/- on respondent No.5, however, without any basis recorded the conclusion that, complaints made by various card holders against respondent No. ::: Downloaded on - 24/01/2013 22:23:50 ::: wp6796.12

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5 are politically motivated or with malafide intention. Such findings rt

recorded by the Minister is without any basis. There is no discussion ou

at all in the judgment as to how those complaints were politically motivated and the same were made with malafide intention by card C

holders. Respondent No.1 should not have exceeded his jurisdiction and should have confined itself within the revisional powers, that too, while entertaining the second revision. By way of impugned judgment h

and order, the Minister has partly allowed the revision observing that ig

one more business opportunity is required to be given to respondent H

No.5 to run the fair price shop and for distribution of kerosene to the card holders. Such finding is answered against the interest of card holders. At this juncture, it would be pertinent to reproduce herein y

below the objects of Essential Commodities Act :- ba

"The object of the Essential Commodities Act is to provide, in om

the interests of the general public, for control of production, supply and distribution of trade and commerce in commodities which are specified in the Act to be essential commodities. The B

power of search and seizure are incidental and supplementary to other powers which are necessary to secure the objects for which the Essential Commodities Act has been passed. The very object of the Essential Commodities Act is to check the inflationary trends in prices and to ensure equitable distribution of essential commodities." ::: Downloaded on - 24/01/2013 22:23:50 ::: wp6796.12

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Therefore, considering the object of the Act, as quoted above, rt

the Minister should have given importance to the interest of the card ou

holders rather than the interest of respondent No.5. When there is overwhelming material placed on record by the cardholders and there C

is report by the Tahsildar who is responsible Government Officer at Taluka place and further such report has been accepted by the District Supply Officer and action of District Supply Officer to cancel the h

licence granted in favour of respondent No.5 has been upheld by the ig

Deputy Commissioner (Supply), who has rejected first revision filed by H

respondent No.5, by any stretch of imagination, respondent No.1 by cryptic findings should not have partly allowed the revision of respondent No.5. Such exercise of powers by the respondent No.1 y

i.e. Minister of Food, Civil Supply and Consumer Protection, ba

Maharashtra State, Mumbai, is contrary to reason and objects of Essential Commodities Act 1955 and the Maharashtra Scheduled om

Commodities (Regulation of Distribution) Order (1975). B

12. This court in the case of Shivaji Tulshiram Thakre (Supra) in para 9, has held thus:-

"9. Now coming to the merits of the matter, in the order dated 31-8-2009 passed by the Minister, which has been reviewed, the finding was recorded that the charges of misappropriation have ::: Downloaded on - 24/01/2013 22:23:50 ::: wp6796.12

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been established and taking into consideration all the aspects, it was rt

held that respondent No.4 had violated the terms and conditions of ou

the fair price shop licence. In review, the finding that the charges have been established against respondent No.4 has been confirmed. It is only on humanitarian ground that one more opportunity was C

given to respondent No.4 to pay the amount, which he had misappropriated, along with fine of Rs.5,000/- as a condition for h

restoration of the licence. Such is not the scope of review under ig

clause 24(2) of the said Order. The order impugned changes the view which was earlier taken on re-hearing of the matter. The view H

taken earlier being a possible view of the matter, no interference was called for in the jurisdiction of review under clause 24(2) of the said y

Order. The order passed by the Minister, impugned in this petition, cannot, therefore, be sustained." ba

In the facts of that case, the Minister concerned, restored the om

licence on humanitarian ground and ordered the licensee to pay back amount of misappropriation alongwith fine of Rs.5000/-. This court B

while appreciating the facts of that case, held that the Minister concerned has not exercised the powers of review within the scope of clause 24 sub clause (2) of the relevant Order.

13. Therefore, taking over all view of the matter, in my considered opinion, the impugned judgment and order dated 20.7.2012, passed ::: Downloaded on - 24/01/2013 22:23:50 ::: wp6796.12

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by the Minister, Food, Civil Supply and Consumer Protection in rt

Revision Application No. 251-2012/NP-21 cannot be sustained in law ou

and the same is therefore, quashed and set aside. The order dated 3.9.2011, passed by the District Supply Officer, Hingoli cancelling the C

licence of respondent No.5 to run the fair price shop, which is confirmed by the Deputy Commissioner (Supply) Aurangabad Division, Aurangabad on 27.1.2012, stands confirmed. h

14.

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Rule made absolute in the above terms. The petition is allowed H

to the above extent and stands disposed of. *****

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