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2013 Supreme(Bom) 532
In the High Court of Bombay at Aurangabad
S.S. SHINDE, J.
Sudam s/o Kesu Pawar
Versus
The State of Maharashtra, Through Hon’ble Minister, (Food, Civil Supply and Consumer Protection) Maharashtra State & Others
Writ Petition No. 6927 of 2007
Decided on : 05-03-2013
For the Petitioner:G.N. Chincholkar, Advocate.
For the Respondents:R1 to R3, K.J. Ghute Patil, AGP, R4, M.S. Indani, Advocate.
Headnote:Essential Commodities Act, 1955 - Section 3 - Maharashtra Scheduled Commodities Order, 1975, Clause 24(2) - Fair price shop.
Where 1st Revision by respondent, shop owner against cancellation of his licence was rejected by Divisional Commissioner (Supply) therefore decision of Minister in 2nd Revision granting permission to run shop by imposing fine, is without jurisdiction. - It is abundantly clear that, though respondent No. 1 has accepted and held that certain deficiencies were found during inspection of the shop run by respondent No. 4, therefore rightly imposed fine of Rs. 10000/- in respondent No. 4., however, without any basis has permitted respondent No. 4 to run the fair shop. Respondent No. 1 should not have exceeded his jurisdiction and should have confined himself within the revisional powers, that too, while entertaining the second revision. By way of impugned judgment and order, the Minister has partly allowed the revision observing that one more business opportunity is required to be given to respondent No. 4 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.
The Minister should have given importance to the interest of the card holders rather than the interest of respondent No. 4. When there is overwhelming material placed on record by the petitioner and there is report of the Dakshata Pathak and further said report has been accepted by the Sub-Divisional Officer and action of Sub-Divisional Officer to cancel the licence granted in favour of respondent No. 4 has been upheld by the Divisional Commissioner (Supply), who has rejected first revision filed by respondent No. 4, by any stretch of imagination, respondent No. 1 by cryptic finding should not have partly allowed the revision of respondent No. 4. Such exercise of powers by the respondent No. 1 i.e. Minister of Food, Civil Supply and Consumer Protection, Maharashtra State, Mumbai, is contrary to reasons and objects of Essential Commodities Act, 1955 and the Maharashtra Scheduled Commodities (Regulation of Distribution) Order (1975).
1. Rule. Rule made returnable forthwith. By consent, heard finally.
2. This petition takes exception to the order date 31.10.2007, passed by the Minister for Food, Civil Supply and Consumer Protection, Maharashtra, State, Mantralaya, Mumbai in Revision No. VAM-1606/1595/PK 2061/N.P.21.
3. The background facts, which lead to institute the present writ petition, as disclosed in the petition, in nutshell, are as under:-
a) The petitioner is the card holder of the fair price shop of respondent No.4 situated at village Yawal Pimpri, Tanda No.1, Tq. Ghansawangi, District Jalna. The villages attached to the shop of respondent No.4 made complaint stating there he is selling the goods at higher price than prescribed by the Government and not making entires on their card. It was also stated that respondent No.4 was distributing the kerosene in less quantity then they are entitled.
b) On the basis of the said complaint, Vibhagiya Dakshata Pathak, Aurangabad visited the shop of respondent No.4 and inspected the same. On making enquiry, there were irregularities in 7 in numbers found. The said Pathak accordingly had submitted its report to the Deputy Commissioner (Supply) Aurangabad. The said report was also sent to the Sub Divisional Officer, Partur.
c) The Sub Divisional Officer, Partur issued show cause notice to respondent No.4 on 18.3.2006 and directed him to submit his reply. Since respondent No.4 had not submitted his reply, the Sub Divisional Officer, by his order dated 13.4.2006 cancelled the authorization of respondent No.4 to run the fair price shop.
d) Being aggrieved and dissatisfied with the order passed by the Sub Divisional Officer, respondent No.4 preferred revision before the Divisional Commissioner, Aurangabad. The Divisional Commissioner, on 14.8.2006 dismissed the revision and confirmed the order dated 13.4.2006 passed by the Sub Divisional Officer, Partur.
e) It is further case of the petitioner that, respondent No.4 had challenged the order passed by the Divisional Commissioner by filing second revision before the Minister i.e. respondent No.1. The Minister though has observed in his order that the findings recorded by the authorities below are correct, but to give one opportunity to respondent No.4, as he has no source of income, by imposing fine of Rs.10,000/-, had set aside the orders of the authorities below. Hence this petition.
4. Learned counsel appearing for the petitioner submit that respondent No. 1 has committed error in allowing the Revision filed by the respondent No.4 and the reasoning is unsustainable in the eyes of law. There is no provision in the Act or Rules which permits the authority to condone the illegalities committed by the Licensee and permit him to run the License by imposing only fine. Thus the Hon’ble Minister has exceeded his jurisdiction. It is further submitted that the Minister has also held that, respondent No.4 was guilty and the charges levelled against him are proved. However, he has allowed the Revision by observing that one opportunity is required to be given to respondent No.4. On perusal of evidence on record, it would reveal that all charges levelled against respondent No.4 have been proved. Both the authorities have concurrently held that charges against respondent No.4 have been proved. Not only that, an offence punishable under Sections 3 and 7 is registered against respondent No.4 and Special Case No. 9 of 1999 is pending against respondent No.4 before the learned District and Sessions Judge, Jalna.
Learned counsel invited my attention to the pleadings in the petition, grounds taken therein and submitted that once respondent No.1 i.e. Minister having been accepted the findings of the authorities below, should not have caused interference in the said orders. It is submitted that when the charges against the licence holder are established, there was no occasion for respondent No.1 to cause any interference in the orders passed passed by the authorities belo
