Smt.Chaya Jagan Kale vs The State Of Maharashtra on 17 February, 2011

[Cites 4, Cited by 5]

Bombay High Court

Smt.Chaya Jagan Kale vs The State Of Maharashtra on 17 February, 2011

1. Rule. Mrs.M.P.Thakur, learned AGP waives service on behalf of Respondent Nos.1 to 3. Mr.Aiya, learned counsel waives service on behalf of Respondent No.4. By consent of the parties, Rule is made returnable forthwith and heard finally.

2. By this petition under Article 226 and 227 of the Constitution of India, the petitioner has prayed for quashing and setting aside (i) the Government Order dated 4.7.2007 thereby amending clause 30 of the Maharashtra Scheduled Food Grain Rationing (Second) Order, 1966 (for short the "Order"), (ii) the Government Resolution dated 3.11.2007 issued by the State of Maharashtra and (iii) the Judgment and Order dated 1.11.2010 passed by the Minister for Food, Civil Supplies and Consumer Protection Department, State of Maharashtra, in Review Petition thereby cancelling the ration shop allotted to the petitioner earlier by the then Hon'ble Minister for Food, Civil Supplies and Consumer Protection, and further alloted the same to the Respondent No.4. The facts and circumstances, giving rise to the filing of the present petition, briefly stated are as under:-

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FACTS:

3. The Controller of Rationing and the Director of Civil Supplies, Mumbai gave advertisement on 4.2.2008 inviting applications from the interested self-help groups, individual applicants and the consumer co-operative societies in respect of allotment of new ration shops at 289 locations. These locations became available at Mumbai/Thane region on account of surplus units in the existing rations shops, as also due to closer of some rationing shops. The last date for submitting applications was 15.3.2008. The controversy in the present petition relates to the Item No.141/08, Building No.11, Sangharsh Nagar, Chandivali. The said item was reserved for exclusively individual women.

4. It is the case of the petitioner that she submitted her application giving all the particulars as also enclosing all the necessary documents.

Pursuant to this advertisement, in all 24 applications were received in respect of Item No.141/08. The 3rd Respondent, Deputy Controller of Rationing, E Region, Wadala, by an order dated 12.1.2009 sanctioned the allotment of new ration shop in favour of the petitioner. He rejected rest of the applications on the grounds more particularly set out against the respective applicants.

5. Aggrieved by this decision, the Respondent No.4 and three others ::: Downloaded on - 09/06/2013 16:51:32 ::: 4 preferred revision application before the Hon'ble Minister, Food, Civil Supplies and Consumer Protection Department. By order dated 15.10.2009 the revision applications preferred by the Respondent No. 4 & three others were rejected and the order dated 7.10.2008 passed by the Deputy Controller of Rationing, 'E' Region, Wadala, sanctioning the allotment of ration shop in favour of the petitioner was confirmed.

6. Aggrieved by this decision, the Respondent No.4 and one Smt.Sunita Tejpal Charan, filed review applications as per clause 30(2) of the Order before the Hon'ble Minister, Food & Civil Supplies and the Consumer Protection. By the impugned order dated 1.11.2010, the learned Minister allowed the revision preferred by the 4th Respondent herein and set aside the order dated 7.10.2008 made by the Deputy Controller of Rationing, 'E' Region, Wadala, as also the order dated 15.10.2009 passed by the then Hon'ble Minister. He sanctioned allotment of new ration shop in respect of Item No.141/08 to the 4th Respondent. The Hon'ble Minister rejected the revision application preferred by Smt.Sunita Tejpal Charan.

7. Being aggrieved by the above order, the petitioner has preferred the present writ petition on the grounds canvassed, the details of which are cataloged herein-below.

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RIVAL SUBMISSIONS:

8. We have heard Mr.V.N.Salunkhe, learned counsel for the petitioner, Mrs.M.P.Thakur, learned AGP for the Respondent Nos.1 to 3 and Mr.Uday Warunjikar, learned counsel for Respodnent No.4.

9. Mr.Salunkhe submitted that Item No.141/08 was exclusively reserved for individual women. By order dated 12.1.2009 the Deputy Controller of Rationing sanctioned the new ration shop in favour of the petitioner. While rejecting the application made by the 4th Respondent, he observed that since the present item is reserved exclusively for individual women, as per clause 13 of the Advertisement only individual women were entitled to apply. The applications made by applicants other than individual women were liable to be rejected. He therefore came to the conclusion that the application made by the 4th Respondent being women self-help group cannot be considered. Against this decision, the Respondent No.4 alongwith three others preferred revision application which was dismissed by the Hon'ble Minister on 15.10.2009. He therefore submitted that in the first place, the impugned order is liable to be quashed and set aside on this count alone. Secondly, the order dated 4.7.2007 passed by the State Government amending Clause 30 of the ::: Downloaded on - 09/06/2013 16:51:32 ::: 6 Order is liable to be quashed and set aside. The said amendment is made without prior concurrence of the Central Government. In support of this submission, he relied upon section 3 of the Essential Commodities Act, 1955 (for short the "Act"). Thirdly, he submitted that the copy of the review petition was not supplied to the petitioner and the same was given only after passing of the impugned order by the Hon'ble Minister. He therefore submitted that the impugned order suffers from violation of the principles of natural justice. Fourthly, he submitted that the reliance placed on the Government Resolution dated 3.10.2007 whereunder the first priority is given to Mahila Bachat Gat is concerned, is misconceived and the same is not applicable to the facts and circumstances of the present case. Out of 289 locations, 95 locations were exclusively reserved for individual women and remaining 194 locations were available for allotment to self help groups, consumer co-operative societies as also the Mahila Bachat Gats. The said Government Resolution cannot be made applicable even in respect of items which are exclusively reserved for individual women. If the said Government Resolution is made applicable even in respect of such items, the very purpose of reserving the said items would be defeated. The impugned order allowing the review petition of the Respondent No.4 i.e.Mahila Bachat Gat is ::: Downloaded on - 09/06/2013 16:51:32 ::: 7 vitiated. He further submitted that, at any rate, no ground for review was made out by the 4th Respondent justifying the Hon'ble Minister to review the earlier orders dated 7.10.2008 and 15.10.2009.

10.On merits he submitted that in the application made by the 4th Respondent, the address of Mahila Bachat Gat was shown at Dharavi and the new ration shop was to be allotted at Chandivali. The agreement of Leave & License executed in favour of the 4th Respondent also showed the address at Dharavi.

ig He therefore submitted that the Hon'ble Minister committed error apparent on the face of the record in entertaining the review petition of the 4th Respondent and ultimately allowing the same. He prayed for setting aside the impugned order and for restoring the orders dated 12.1.2009 and 15.10.2009.

11.On the other hand, Mr.Warunjikar submitted that the reservation made in favour of the women against the Item No.141/08 was without any authority of law. In support of this submission, he relied upon the Circular dated 3.11.2007 issued by the State Government whereunder it is provided that the first preference should be given to the Mahila Bachat Gat and if there is no Mahila Bachat Gat available then the allotment should be made as per the priority criteria laid down by the State Government. He submitted that this circular was subsequently ::: Downloaded on - 09/06/2013 16:51:32 ::: 8 reiterated by another circular dated 25.6.2010 issued by the State Government. The said circular dated 25.6.2010 is also in consonance with the orders and directions issued by the Apex Court in Public Interest Litigation No.196 of 2001, as also in the Misc.Interim Application No.10/2009 filed therein. He therefore submitted that the reservation for individual women in respect of Item No.141/08 in the Advertisement dated 4.2.2008 was without any authority of law. He further submitted that one Shri.Babanrao Vitthalrao Shinde (M.L.A.) had addressed a letter dated 24.2.2009 to the then Hon'ble Minister for Food, Civil Supplies and Consumer Protection, which resulted in the order dated 15.10.2009 in favour of the petitioner. By the impugned order, the present Hon'ble Minister has rightly set aside the earlier orders. He further submitted that the petitioner has filed disability certificate purportedly issued by the private Trust and not by the competent authority as per the Government Rules. The petitioner also claims to be the educated unemployed. However, she has passed 7th Standard examination. As against this, the requirement for educated employed is atleast S.S.C., or equivalent examination.

Despite this position, the petitioner was given priority applicable to the disable person as also the educated unemployed person. In support of the submission that the petitioner cannot claim to be ::: Downloaded on - 09/06/2013 16:51:32 ::: 9 educated unemployed, he relied upon the Government Circular dated 18.11.1998.

12.He further submitted that there is no violation of the principles of natural justice, as though the notice of hearing dated 4.8.2010 was served upon the petitioner, she chose to remain absent. On the next date of hearing i.e.23.8.2010 she was present alongwith her brother.

The petitioner had even filed written submissions before the Hon'ble Minister. He therefore submitted that there is no substance in the contention advanced by the petitioner that the principles of natural justice were violated. He further submitted that the petitioner is resident of Kalyan and she had applied for allotment of ration shop at Chandivali and therefore, she was not eligible to apply for such allotment. He therefore supported the impugned order passed by the Hon'ble Minister and prayed for dismissal of the petition.

13.On behalf of the State Government, Mr.Vijay Bhakare, Dy.Controller of Rationing, 'E' Region, Mumbai has made an affidavit dated 5.2.2011. Paragraph No.3 of the said affidavit reads as under:-

"I say that in Mumbai/Thane Rationing Area 289 locations were finalized for the advertisement of new ration shops. To avoid the delay in sanctioning new ration shops, the consolidated advertisement was given at the level of office of Controller of Rationing on dated 4.2.2008 for 289 locations. I say that out of these 289 locations, 95 locations were exclusively reserved for individual women. List of those locations was displayed with the advertisement as per the Government Resolution dated 27.03.2000 and the present petitioner is one of the Applicant. I say that while allotting the remaining 194 locations, priority was given to self help Groups and others as ::: Downloaded on - 09/06/2013 16:51:32 ::: 10 per the advertisement. I say that out of 194 locations, self-help groups applied for 95 locations alongwith others. I say that out of these 95 locations, only 25 locations were allotted to self-help group and remaining applications were rejected as the applicants had not fulfilled the necessary criteria. I say that for the balance locations, priorities were given to criteria specified in the Advertisement dated 04.02.2008. I sincerely and honestly state that there was no intention of committing breach of Government Resolution dated 03.11.2007. I say that the ultimate aim of giving a consolidated advertisement was to avoid inconvenience to the card-holders for whom new ration shops are to be sanctioned.

I say that presently these Respondents are following the orders of Hon'ble Supreme Court dated 10.05.2010 which reads as under:-

"As an interim measure, the State of Maharashtra is permitted to issue licences for Fair Price Shops and kerosene retail shops to Self Help Groups. They may distribute it through Gram Panchayat, Co-operative Society, Women/Co-operative Society run by women. Ex-Army Co-

operative Society, Handicapped, Widow and greater priority would be given to the Widows of Army Men".

14.The learned AGP has produced the original record for our perusal. She did not dispute that so far as Item No.141/08 is concerned, that was exclusively reserved for individual women.

CONSIDERATIONS:

15.We have considered the rival submissions advanced by the learned counsel appearing for the parties and have also perused the original record produced by the learned AGP. The petitioner has challenged the Government Order dated 4.7.2007 whereby the power to review is conferred upon the State Government. The said clauses 30 (2) and 30 (3) read as under:-

"30(2) Government may on an application made or suo-motu at any time before the expiry of one years from the date of any order ::: Downloaded on - 09/06/2013 16:51:32 ::: 11 passed by it in revision under this clause may review such order if it is satisfied about the reasons to do so on any of the following grounds namely:-

(1)discovery of new and important matter of evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the order was passed or order was made, OR (2)some mistake or error apparent on the face of the record, (3)for any other sufficient reason.

And upon such review if it shall appear to the State Government that such order should be modified, annulled or confirmed, it may pass such order it deem fit."

"30(3) Order passed in review shall on no account be re-reviewed."

16.Mr.Salunkhe urged that the order dated 4.7.2007 is made without prior concurrence of the Central Government. He relied upon Section 3 of the Act. We do not find any merit in this submission. Section 3 of the Act empowers the Central Government to issue order for maintaining or increasing supply of any essential commodity or for securing their equitable distribution and availability at fair prices among other things. Section 5 of the Act empowers the Central Government to direct that the power to make orders or issue notifications u/s.3 shall, in relation to such matters, and subject to such conditions, if any, as may be specified in the direction, be exercisable also by such State Government or such officer or authority sub-ordinate to the State Government as may be specified in the direction. In exercise of ::: Downloaded on - 09/06/2013 16:51:32 ::: 12 powers conferred by clauses (c), (d), (e), (h) and (J) of sub-section (2) of Section 3 of the Act read with the Government of India, Ministry of Industries and Civil Supplies (Department of Civil Supplies and Co-

operation), Order No.S.O.681 (E), dated 30.11.1974 and Order No.S.O.682 (E), dated 30.11.1974 and the Government of India, Ministry of Agriculture and Irrigation (Department of Food) Order No.G.S.R.800 dated 9.6.1978 and all other powers enabling it in that behalf, the Government of Maharashtra with the prior concurrence of the Central Government had made the Order. It therefore follows that under the aforesaid orders and notifications, the State Government is also entitled to further amend the order. In view thereof, we are of the opinion that the submission made by the petitioner that the Order dated 4.7.2007 passed by the State Government amending the Order and providing remedy of review without prior concurrence of the Central Government is bad in law, cannot be accepted. We are clearly of the opinion that the Government has the necessary authority to make the order and amend the said order.

17.Mr.Salunkhe further urged that the Item No.141/08 was exclusively reserved for individual women. This position is not disputed by the learned AGP and even otherwise, from the perusal of the advertisement dated 4.2.2008 it is abundantly clear that the Item No. ::: Downloaded on - 09/06/2013 16:51:32 ::: 13 141/08 was exclusively reserved for individual women.

18.Mr.Warunjikar however canvassed that the said reservation made by the State Government was without any authority of law. In the first place, the Respondent No.4 did not challenge the advertisement pertaining to the Item No.141/08 which was reserved exclusively for individual women. In fact, the 4th Respondent applied pursuant to the said advertisement even in respect of Item No.141/08. Secondly, the 4th Respondent did not challenge the reservation qua Item No.141/08 when it preferred the revision before the then Hon'ble Minister which was decided on 15.10.2009. We are therefore clearly of the opinion that the 4th Respondent is precluded from raising the said contention.

19.Even otherwise, as pointed out earlier, the Controller of Rationing and the Director of Civil Supplies, Mumbai issued advertisement on 4.2.2008 inviting applications for allotment of new ration shops at 289 locations. Out of these 289 locations, 95 locations were exclusively reserved for individual women and remaining 194 locations were available for allotment to self help group, Consumer Co-operative Societies , Mahila Bachat Gats and others. We do not find that any error was committed by the State Government while reserving 95 locations out of 289 locations exclusively for individual women. We therefore do not find any substance in the submissions advanced on ::: Downloaded on - 09/06/2013 16:51:32 ::: 14 behalf of the 4th Respondent.

20.In view of the aforesaid discussion, the impugned order dated 1.11.2010 passed by the Minister for Food and Civil Supplies and the Consumer Protection Department is wholly unsustainable as the Item No.141/08, though was exclusively reserved for individual women, in exercise of power of review, the Hon'ble Minister has set aside the earlier orders dated 12.1.2009 and 15.10.2009 and allotted the shop to Respondent No.4. The impugned judgment and order passed by the Hon'ble Minister is therefore liable to be quashed and set aside.

21.Mr.Warunjikar, however submitted that while the earlier revision was pending before the then Hon'ble Minister Mr.Babanrao Vitthalrao Shinde (M.L.A.) had addressed a letter dated 24.2.2009 and this resulted in the order dated 15.10.2009 in favour of the petitioner. The Hon'ble Minister was therefore justified in setting aside the said order.

He further submitted that the petitioner had filed disability certificate issued by the private trust and not by the competent authority as per the Government Rules. The petitioner also claimed to be the educated unemployed though she has passed 7th standard examination.

22.Perusal of the record indicates that the petitioner was considered as falling in Priority No.2 (Physically Handicapped) Priority No.3 (Educated Unemployed) and Priority No.4 (Backward Class). In so ::: Downloaded on - 09/06/2013 16:51:32 ::: 15 far as the Priority No.2 (Physically Handicapped) is concerned, she has produced disability certificate from Nakoda Bhairav Trust, Gajrobai Sardarmal Parekh. So far as the Priority No.3 "Educated Unemployed" is concerned, she has passed 7th standard examination.

The Government Circular dated 18.11.1998 clearly stipulates that the person who have passed either SSC or 10th standard shall be considered as "Educated Unemployed". Since the petitioner has passed 7th standard examination, obviously she could not have been considered as "Educated Unemployed" falling in Priority No.3.

Likewise, the petitioner has produced disability certificate from a private Trust which cannot be considered to be an authentic certificate.

However, the Deputy Controller of Rationing as also the then Minister, while passing the order on 15.10.2009 considered that the petitioner satisfies the criteria laid down for Priority Nos.2, 3 and 4.

We are clearly of the opinion that the petitioner cannot claim to be physically handicapped person on the basis of certificate produced from a private Trust, as also the educated unemployed having regard to the fact that she has passed 7th standard examination. In our opinion, these aspects were not properly considered by the authorities while passing the orders on 12.1.2009 & 15.10.2009. In view thereof, even though we are inclined to set aside the impugned order passed by ::: Downloaded on - 09/06/2013 16:51:32 ::: 16 the Hon'ble Minister, considering the aforesaid facts, we direct the State Government to issue fresh advertisement in respect of Item No. 141/08.

23.During the course of hearing, we have perused the original record.

We are disturbed to note that despite one of us (V.C.Daga J.) issuing the procedural Guidelines for quasi-judicial authority in Writ Petition No.4101 of 2007 in the judgment dated 24.3.2009, the authorities are not following the said Guidelines. We approve and reiterate the said Guidelines which have been laid down in Paragraph No.17 of that judgment. For ready reference they are reproduced herein-below:

"Procedural Guidelines for Quasi-Judicial Authority :

17. This Court in exercise of powers conferred under Articles 226 and 227 of the Constitution of India prescribes the following procedure to be adopted by quasi-judicial authorities including the Ministers, Secretaries, officials and litigants while hearing and determining appeals, revisions, review applications and interim applications etc.:

1) Memo of appeal or revision, review and or any application shall specifically mention under which enactment and/or under what provisions of law the said appeal/ review/ revision or application is filed.

(2) The appellant/ applicant shall give a synopsis of concise dates and events along with the memo of appeal or revision.

(3) The appeal, revision and/or application shall be filed within a period stipulated under the law governing the subject from the receipt of the order/ decision which is impugned in the above matter. In the event of delay, it should only be entertained along with application for condonation of delay.

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(4) At the time of presentation of the appeal, review or revision, the applicant shall, if, filed in person, establish his identity by necessary documents or he shall file proceedings through authorised agent, and/or advocate.

(5) The application shall be accompanied by sufficient copies for every opponents/ respondents and also supply 2 extra copies for the authorities.

(6) For issuance of summons to the opponents/ respondents, court fees/ postal stamps of sufficient amount shall be affixed on the application form/ memo of appeal or revision as the case may be.

     (7)       In addition to service through
                        ig                             the authority,

appellant/applicant may separately send the additional copies to each of the opponents/respondents by registered post acknowledgement due and may file affidavit of service along with evidence of despatch. The postal acknowledgment alone should be treated as evidence of service in the event of service through postal authority.

(8) In the event of an urgency of obtaining an interim relief like stay, injunction/other interim order or direction or status-quo etc, a specific case of urgency should be made out in the application, which the authority may entertain subject to the brief reasons recorded. The said order shall also be communicated immediately to all the effected persons. The proof of timely despatch of the Registered A.D.s and all the acknowledgments shall be separately maintained.

(9) If there is real urgency, the concerned authority may grant ex parte interim/ ad-interim relief for the reasons to be recorded for a particular period only within which time the service on the concerned opponents/respondents shall be effected. Appellant/ applicant should file affidavit of service, if such party requires early hearing or continuation for interim relief or of an appeal, revision or review.

(10) The competent authority shall also communicate next date of hearing to all the parties along with time and place and shall, as far as possible, adhere to the said date and time of hearing.

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(11) The concerned official in every department should be asked to remain present at the time of hearing and assist the concerned authority in the matter.

(12) Reasonable sufficient time be provided between the date of receipt of notice and the actual date of hearing. If any party is unable to remain present at the time of hearing for a sufficient cause, one further opportunity should be given to such party for hearing.

(13) The authority hearing quasi-judicial matters shall duly fix a date, time and venue for such hearing. Such authority shall refrain from interacting with third party during the course of hearing either in person or on phone and shall not do any act which would tend to affect or prejudice fair hearing.

(14) A speaking order shall be passed by the authority hearing the matter as early as possible after the hearing is concluded and, as far as possible, within a period of four to eight weeks from the conclusion of the hearing, on the basis of the record before it as well as the submissions made at the hearing. The order must contain reasons in support of the order.

(15) The authority shall not receive information or documents after the hearing is concluded and/or shall not pass the speaking order on the basis of such documents and/or information unless such material is brought to the notice of the parties to the proceedings following rules of natural justice.

(16) The order passed by the quasi-judicial authority on the hearing shall be forthwith communicated to all the parties by Registered A.D. (17) No application or request or prayer from the political worker, Member of Legislative Assembly, Member of Parliament or third party shall be entertained in the quasi-judicial proceedings unless such person is a party Respondent or intervenor in the proceedings.

(18) The order pronounced shall be communicated to the parties immediately.

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(19) Record of hearing shall be meticulously maintained in a separate Roznama.

(20) The notings of concerned officials/ law assistants to assist the authority shall include only content of facts and legal provisions alongwith case laws, if any.

(21) The notings made by the law officials/ concerned officials shall not be in the form of order."

24.So far as the Guideline No.4 is concerned, it provides that the presentation of the appeal, review or revision shall be through the person who shall be an authorised agent and/or Advocate.

Mr.Salunkhe made a grievance that though the order records that the petitioner was represented through her representative, in fact she did not authorise any representative to represent her case. We therefore direct the authorities to insist for authorisation in writing from the parties appearing before the concerned authorities. This will obviate making of any grievance by any party subsequently.

25.Guideline No.10 provides that the competent authority shall communicate the next date of hearing to all the parties alongwith alongwith the time and place and shall, as far as possible, adhere to the said date and time of hearing. Guideline No.12 provides that the reasonable sufficient time shall be provided between the date of receipt of the notice and the actual date of hearing. We expect that the notice of hearing shall be given in writing to the concerned parties ::: Downloaded on - 09/06/2013 16:51:32 ::: 20 and proper record of the proceedings including acknowledgments evidencing service of notice on interested parties shall be maintained.

This has necessitated, as in the present case, the petitioner has made a grievance that no written notice was received by her. Guideline No. 17 lays down that no application or request or prayer from political worker, Member of Legislative Assembly, Member of Parliament or third party shall be entertained in the quasi-judicial proceedings unless such person is a party Respondent or intervenor in the proceedings.

Despite this Guideline, Mr.Babanrao Shinde (M.L.A.) had addressed a letter dated 24.2.2009 to the then Hon'ble Minister requesting the later to vacate the interim stay and allot the ration shop to the petitioner so that justice can be done to her. We hope that the concerned authorities follow the Guidelines reproduced herein-above.

26.In view of the aforesaid discussion, the impugned judgment and order dated 1.11.2010 passed by the Hon'ble Minister for Food, Civil Supplies and Consumer Protection Department is hereby quashed and set aside. The Respondent No.1-State Government is directed to issue fresh advertisement in respect of Item No.141/08. Rule is made absolute in the aforesaid terms, with no order as to costs.

27.At this stage, Mr.Warunjikar, learned counsel appearing for Respondent No.4 prayed for staying the effect and operation of this ::: Downloaded on - 09/06/2013 16:51:32 ::: 21 judgment and order for a period of six weeks. The prayer made is opposed. However, considering the issues, this order shall stand stayed for a period of six weeks from today. Needless to mention that with the expiry of six weeks, this judgment and order shall become operative.

    (R.G.KETKAR, J.)                           (V.C.DAGA, J.) 




                                       
                         
                        
      
   






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