2011 Supreme(Bom) 1112

2012 (1) ALL MR 150
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
R. K. DESHPANDE, J.
Shivaji Tulshiram Thakre
Vs.
State of Maharashtra & Ors.
Writ Petition No. 5646 of 2010
Decided on : 20th September, 2011

Headnote:MAHARASHTRA SCHEDULED COMMODITIES (REGULATION OF DISTRIBUTION) ORDER, 1975 - Clause 24 - Cancellation of licence of fair price shop. Petitioner-complainant, a ration card-holder, has locus to file writ petition against order passed in review, restoring fair price shop licence by imposing fine. - 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.

       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 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. 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.

       MAHARASHTRA SCHEDULED COMMODITIES (REGULATION OF DISTRIBUTION) ORDER, 1975 - Clause 24 - Scope of review under. Where a fair price shop licence was cancelled on ground of violation of terms and conditions of licence, the refore restoration of licence in review under Clause 24(2) of Order 1975 not permissible.

       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 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 b 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.

       MAHARASHTRA SCHEDULED COMMODITIES (REGULATION OF DISTRIBUTION) ORDER, 1975 - Clause 24 - Maharashtra Scheduled Commodities Retail Dealer’s Licensing Order, 1979, Clause 15 - Appeal. Any person, aggrieved by an order under Clause 3-C of Order 1979, can prefer an appeal under Clause 24(1) of Order 1975.

       The provision of Clause 24(1) of the 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 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 Dealer’s Licensing Order. 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.