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2013 Supreme(Bom) 2562
In the High Court of Bombay at Aurangabad
S.S. SHINDE, J.
Shaikh Salimoddin Shaikh Shamsoddin
Versus
State of Maharashtra, Through Its Principal Secretary, Food, Civil Supply and Consumer Protection Department & Others
Writ Petition No. 9680 of 2011
Decided On: 20-12-2013
For the Petitioner:R.T. Nagargoje, Advocate.
For the Respondents:R6, Pravin Dighe, Advocate, G.K. Thigle-Naik, A.G.P.
Orders obtained by fraud, non-joinder of affected parties, and violation of principles of natural justice render the orders null and void.
Headnote:
Writ Petition - Challenging order related to Fair Price Shop licenses - Essential Commodities Act, Maha. Scheduled Commodities Regulation & Distribution) Order, 1975 - The court quashed and set aside the orders passed by the revisional authorities due to non-joinder of the affected party, violation of principles of natural justice, and nullity of the orders obtained by fraud.
Fact of the Case:
The petitioner challenged the order directing the restoration of Fair Price Shop licenses to a society, alleging non-joinder of the affected party and violation of principles of natural justice. The petitioner had been running one of the shops and was not included in the proceedings initiated by the society.
Finding of the Court:
The court found that the orders obtained by the society were null and void due to non-joinder of the affected party and violation of principles of natural justice. The court quashed and set aside the orders passed by the revisional authorities.
Issues: Non-joinder of affected party, violation of principles of natural justice, nullity of orders obtained by fraud
Ratio Decidendi: The court held that orders obtained by fraud, non-joinder of affected parties, and violation of principles of natural justice render the orders null and void.
Final Decision: The petition was allowed, and the court quashed and set aside the orders passed by the revisional authorities.
1. Rule. Rule made returnable forthwith. Heard with the consent of the parties.
2. This Writ Petition is filed challenging the order dated 18th August, 2004 passed by respondent No.2 - the Hon'ble Minister, Food, Civil Supply and Consumer Protection Department, Mantralaya, Mumbai in Revision Application No. oSve&1604@1168@iz-dz-837@uk-iq-@21 thereby, directing the authorities to restore the licenses of Fair Price Shop Nos. 73, 77 and 78 in Short, FPS Nos. 73, 77 & 78.) in favour of Respondent No.6 Society.
3. It is case of the Petitioner that, Resp.No.6 - Society was allotted FPS Nos. 73, 77 & 78 but, subsequently because of economical difficulties and mis-management, Resp.No.6 - Society was unable to run the same. Accordingly, Resp.No.6 - Society had passed a Resolution and decided not to run the Society and also agreed to grant licenses in favour of its Salesmen. The Petitioner was one of the Salesman of Shop No.77 of Resp.No.6 – Society. As such, FPS No.77 was allotted to the Petitioner. Respondent No.6 had submitted an application before the learned District Collector, Aurangabad and requested to allot FPS No.77 in favour of the Petitioner. On 21st September, 1984, Resp.No.4 by his order cancelled the licence of Resp.No.6 - Society and issued allotment letter in favour of the Petitioner.
4. It is case of the Petitioner that, after a period of 20 years, i.e. on 29th September, 2003, Resp.No.6 – Society submitted an application before the District Supply Officer and requested to re-grant licence of FPS Nos. 73, 77 and 78 in its favour. On 7th November, 2003, said authority has refused to consider the said request. On 19th January, 2004, Resp.No.6 - Society filed Revision before the Dy. Commissioner Supply) Aurangabad without joining / impleading the present Petitioner as a party – respondent. It is case of the Petitioner that, by way of temporary arrangement, the concerned authority granted FPS No.77 in favour of Resp.No.6 - Society. Being aggrieved by the said order, the Petitioner had instituted Regular Civil Suit No.238 Of 2004 in the Civil Court, Senior Division, Aurangabad for perpetual injunction restraining Respondent No.6 Society from dispossessing him from FPS No.77 and inter alia, filed an application Exh.No.5 for grant of temporary injunction. The learned Civil Judge, Senior Division, Aurangabad by his order dated 4th February, 2005 temporarily restrained respondent No.6 Society from dispossessing the Petitioner from FPS No.77. However, in CRA No.10/2006 an objection was raised in respect of maintainability of said Civil Suit. It is further case of the Petitioner that, the learned Civil Judge, Senior Division, Aurangabad dismissed Regular Civil Suit No.238/05 instituted by Petitioner. Thereafter, being aggrieved and dissatisfied by said order, the petitioner preferred Regular Civil Appeal No.102 Of 2011 in the District Court, Aurangabad. Subsequently, on 21st November, 2011 he filed withdrawal pursisand withdrew the said Regular Civil Appeal.
5. It is further case of the Petitioner that, for FPS No.77 there are two licences i.e. one for Fair Price Shop and another is a kerosene licence. It is case of the Petitioner that, licnece for kerosene was cancelled without joining the Petitioner as party respondent. Therefore, being aggrieved with order dated 22/08/05, passed by respondent No.2, Petitioner filed W.P. No. 6705/05 in this Court where-in interim order was passed by the Division Bench of this Court on 7th July, 2006 and order passed by respondent No.2 dated 22nd August, 2005 was stayed. It is further case of the Petitioner that, though he is running said FPS upto the year 2011 regularly, sincerely and without any complaint but, in the month of June, 2011 without following due procedure, the licence of the Petitioner was cancelled by the Dist. Supply Officer.
6. The learned counsel for the Petitioner submits that, though the Petitioner is directly affected party, in as much, the Petitioner was running FPS No
