Bombay High Court
Shivaji Tulshiram Thakre vs State Of Maharashtra on 14 March, 2012
Author: R.K. Deshpande
Bench: R.K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
Writ Petition No.5649 of 2010
Shivaji Tulshiram Thakre,
Aged 50 years,
Occupation - Agriculturist,
R/o Akola (Thakre),
Tq. Mehkar,
District - Buldana. ... Petitioner
Versus
1. State of Maharashtra,
through Minister, Department of
Food and Civil Supply,
Mantralaya,
Mumbai-32.
2. Deputy Commissioner (Supply),
Amravati Division, Amravati.
3. District Supply Officer,
Buldana, Tq. and Distt. Buldana.
4. Sukhdeo Amrut Kumbhar,
R/o Akola Thakare,
Tq. Mehkar, Distt. Buldana. ... Respondents
Shri S.D. Chopde, Advocate for Petitioner.
Shri D.M. Kale, AGP for Respondent Nos.1 to 3.
Shri P.V. Navlani, Advocate, holding for Shri Anand Parchure,
Advocate for Respondent No.4.
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CORAM : R.K. Deshpande, J.
DATED : 14th March, 2012 Oral Judgment :
1. Rule, made returnable forthwith. Heard finally by consent of Shri Chopde, the learned counsel for the petitioner;
Shri Kale, the learned AGP for respondent Nos.1 to 3; and Shri Navlani, the learned counsel for respondent No.4.
2. The challenge in this petition is to the order passed by the Minister, Food, Civil Supplies and Consumer Protection, in exercise of his power under clause 24(2) of the Maharashtra Scheduled Commodities (Regulation of Distribution) Order, 1975 (for short, "the said Order") allowing the revision application and setting aside the order of cancelling the fair price shop licence by upholding the order passed by the District Supply Officer and restoring the licence by directing the payment of Rs.1,47,440/- towards the amount misappropriated and payment of fine of Rs.5,000/-.
3. The petitioner claims to be the resident and the card holder, who had filed a complaint against respondent No.4 ::: Downloaded on - 09/06/2013 18:17:29 ::: 3 wp5649.10.odt about misappropriation of food-grains. The District Supply Officer, Buldana, decided the said complaint and imposed the punishment of forfeiture of security deposit only by an order dated 2-5-2009. The petitioner preferred an appeal against this order before the Deputy Commissioner (Supply), Amravati Division, Amravati, who has passed an order dated 14-7-2009, setting aside the order dated 2-5-2009 and cancelling the licence of fair price shop of the respondent No.4.
4. Respondent No.4 preferred a revision under clause 24 of the said Order before the Minister, Food, Civil Supplies and Consumer Protection. The said revision was dismissed by an order dated 31-8-2009 confirming the order of the Deputy Commissioner (Supply) cancelling the fair price shop licence. In review preferred under clause 24(2) of the said Order, the Minister has reviewed the earlier order dated 31-8-2009 and restored the fair price shop licence by imposing the fine of Rs.5,000/- and directed the payment of Rs.1,47,440/- by respondent No.4 towards the amount, which he had misappropriated. Hence, the original-complainant is before this Court in this petition.
5. The preliminary objection is raised regarding locus of ::: Downloaded on - 09/06/2013 18:17:29 ::: 4 wp5649.10.odt the petitioner to file this petition challenging the order passed by the Minister in review under clause 24(2) of the said Order.
The reliance is placed upon the judgment of this Court in the case of Shivaji Tulshiram Thakre v. State of Maharashtra & Ors., reported in 2012(1) ALL MR 150. It is urged that in view of the said judgment, the petitioner cannot be said to be a person aggrieved, at whose instance this petition can be said to be maintainable.
6. Though the petitioner was the complainant and had preferred an appeal under clause 24(1) of the said Order before the Deputy Commissioner (Supply), in order to decide the question as to whether the petitioner is the person aggrieved by an order of review under clause 24(2) of the said Order so as to maintain this writ petition under Articles 226 and 227 of the Constitution of India, the provision of appeal under clause 24(1) of the said Order will have to be seen to find out whether the appeal was maintainable at the instance of the petitioner. Clause 24(1) of the said Order being relevant, is reproduced below :
"24. Power to call for and examine records of proceedings and revise orders.::: Downloaded on - 09/06/2013 18:17:29 ::: 5
wp5649.10.odt (1) If any person is aggrieved by an order passed by the Collector, the Commissioner, and if any person is aggrieved by an order passed by the Commissioner, the State Government, may, on an application made to him or it by the aggrieved person, within thirty days from the date of receipt of such order, stay the enforcement of such order. The Commissioner or the State Government, as the case may be, may also call for and examine the record of any enquiry or proceedings of the concerned Officer exercising or failing to exercise the powers under this Order to add, to amend, vary suspend or cancel any authorization issued or deemed to be issued under clause 3 or any supply card issued or deemed to be issued under clause 6 or to forfeit the deposit for any part deemed thereof paid or deemed to be paid by a fair price shop or authorized agent as security or to take any other action under the provisions prescribed by or under this Order, for the purpose of satisfying himself or itself as to the legality or propriety of the order passed by such officer, and as to the regularity of the proceedings of such officer and may pass such ::: Downloaded on - 09/06/2013 18:17:29 ::: 6 wp5649.10.odt order thereon as he or it, as the case may be, thinks fit."
It is clear that any person aggrieved by an order passed by the Collector can prefer an application before the Commissioner and the Commissioner may call for and examine the record of any enquiry or proceedings and pass an order to add, amend, vary, suspend or cancel any authorization issued or deemed to be issued under clause 3 or supply card issued or deemed to be issued under clause 6 or forfeit the deposit of any part deemed thereof or deemed to be paid or take any other action and pass such other order thereon as he thinks fit. The power of the Commissioner under this clause is very wide and can be exercised even in cases where the Collector has refused to add, amend, vary, suspend or cancel any authorization issued under clause 3 or even forfeit the deposit, in addition to other action. Hence, the petitioner, who was the complainant and card holder, aggrieved by an order simply imposing the punishment of forfeiture of security deposit, could maintain an appeal for enhancement of an order by cancelling the authorization issued under clause 3 of the said Order. Hence, the petitioner was a person aggrieved at whose instance an appeal under clause 24(1) of the said Order was maintainable.
::: Downloaded on - 09/06/2013 18:17:29 ::: 7wp5649.10.odt Consequently, the petitioner is also a person aggrieved by an order of review passed under clause 24(2) of the said Order quashing and setting aside the order passed by the Commissioner in appeal under clause 24(1) cancelling the licence of fair price shop of respondent No.4 and has locus to maintain this petition.
7. The judgment of this Court in the case of Shivaji Tulshiram Thakre, cited supra, on the question of locus of the petitioner is rendered on clause 15(1) of the Maharashtra Scheduled Commodities Retail Dealers' Licensing Order, 1979 ("Dealers' Licensing Order") relating to an appeal and clause 11 therein relating to forfeiture of security deposit.
Clauses 15(1) and 11(1) of the Dealers' Licensing Order are reproduced below :
"15. Appeal.
(1) Any person aggrieved by any order of the licensing authority refusing to issue or to renew a license or cancelling or suspending a license or forfeiting the security deposit deposited by him under the provisions of this order may appeal in the Bombay Rationing Area, to such officer not below the rank of Deputy Secretary to Government in the Food ::: Downloaded on - 09/06/2013 18:17:29 ::: 8 wp5649.10.odt and Civil Supplies Department of Government as may be designated by Government for the purpose elsewhere, to the Commissioner of the Division."
"11. Forfeiture of security deposit.
(1) Without prejudice to the provisions of clause 10, if the licensing authority is satisfied that the licensee has contravened any of the terms or conditions specified in the license and that a forfeiture of the security deposit is called for, he may, after giving the licensee a reasonable opportunity of stating his case against such forfeiture, by order in writing forfeit the whole or any part of the security deposited by him and communicate a copy of such order to the licensee:
Provided that, where a cancellation of the entire license is duly ordered by the licensing authority, the order of cancellation shall also be accompanied by an order forfeiting the entire deposit."
On the construction of the said clauses, it has been held that though the petitioner was the complainant or party before the ::: Downloaded on - 09/06/2013 18:17:29 ::: 9 wp5649.10.odt proceedings before the lower Court, he cannot be said to be a person aggrieved by an order forfeiting security deposit, at whose instance the petition was filed. The petition was, therefore, dismissed on that sole ground.
8. Perusal of clause 15(1), which was the subject-matter of the judgment of this Court in Shivaji Tulshiram Thakre's case, cited supra, and the provision of clause 24(1) of the said Order, which is being considered in the present case, shows that clause 24(1) is not qualified by the categories of orders, like the order refusing to issue or renew a licence or the order cancelling or suspending a licence or the order forfeiting the security deposit under clause 15(1) of the Dealers' Licensing Order. Clause 24(1) of the said Order is couched in the language wider than in clause 15(1) of the Maharashtra Scheduled Commodities Retail Dealers' Licensing Order, 1979 relating to appeal construed in the aforesaid judgment. Under Clause 24(1), any person, who is aggrieved by an order under clause 3-C of the said Order, can prefer an appeal. The category of persons competent to challenge such orders is not restricted to a class of orders like those under clause 15(1) of the Dealers' Licensing Order. Under clause 3-C, an order can be passed to amend, vary, suspend, withdraw or cancel the ::: Downloaded on - 09/06/2013 18:17:29 ::: 10 wp5649.10.odt authorization issued or deemed to be issued under clause 3 of the said Order, so that any person, who is aggrieved by amendment, variation, suspension, withdrawal or cancellation of the authorization, can file an appeal. The term "an order"
used in clause 24(1) of the said Order shall include the orders refusing to amend, vary, suspend, withdraw or cancel the authorization issued under clause 3 of the Maharashtra Scheduled Commodities Retail Dealers' Licensing Order, 1979.
However, this is not so in case of orders which are appealable under clause 15(1) of the Dealers' Licensing Order. In view of this, the judgment rendered by this Court in the case of Shivaji Tulshiram Thakre, cited supra, is not applicable to the facts of the present case. It is held that the petitioner is a person aggrieved by an order passed under clause 3 and can maintain an appeal under clause 24(1) of the said Order. Consequently, the writ petition at his instance is maintainable.
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 been established and taking into consideration all the aspects, it was held that respondent No.4 had violated the terms and conditions of the fair price shop ::: Downloaded on - 09/06/2013 18:17:29 ::: 11 wp5649.10.odt 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 given to respondent No.4 to pay the amount, which he had misappropriated, along with fine of Rs.5,000/- as a condition for restoration of the licence. Such is not the scope of review under 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 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 Order. The order passed by the Minister, impugned in this petition, cannot, therefore, be sustained.
10. In the result, the petition is allowed. The order dated 28-8-2010 passed by the Minister, Food, Civil Supplies and Consumer Protection, is hereby quashed and set aside.
11. Rule is made absolute in above terms. No order as to costs.
Judge.
Pdl.
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