(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 7187 OF 2010 Digambar s/o. Kondaji Manurkar, Age : 58 years, Occupation : Agriculture & Business, R/o. Manur, Taluka : Umri, District : Nanded. .. Petitioner. versus 1. The State of Maharashtra, Through its Secretary, Food, Civil Supply & Consumer Protection Department, Mantralaya, Mumbai-32. 2. The Tahsildar, Tahsil Office, Umri, Taluka : Umri, District : Nanded. 3. District Supply Officer, Collector Office, Nanded, District : Nanded. 4. The Deputy Commissioner (Supply), Commissioner Office, Aurangabad. 5. The Hon'ble Minister, Food, Civil Supply & Consumer Protection, Mantralaya, Mumbai-32. (2) 6. Bhagwan s/o. Shankarrao Manurkar, Age : 42 years, Occupation : Social Worker, R/o. Manur, Taluka : Umri, District : Nanded. .. Respondents. ....................... Mr. V.D. Patnoorkar, Advocate, for the petitioner. Mr. S.B. Pulkundwar, Assistant Government Pleader, for respondent nos.1 to 5. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 9TH MARCH 2011 ORAL JUDGMENT : 1. Heard Adv. Mr. Patnoorkar, appearing for the petitioner, and learned AGP Mr. Pulkundwar, appearing for respondent nos.1 to 5. 2. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 3. Notice before admission was served upon respondent (3) no.6. However, the said respondent has chosen not to file appearance or argue the matter personally. As no order adverse to the interest of the said respondent is being passed, notice upon Rule on the said respondent is dispensed with. 4. Contention of the petitioner is, his reply to show cause notice was not looked into and order dated 28-12-2004 came to be passed. That order was then questioned in appeal with specific grievance that though reply was filed, the same was ignored. The appeal was dismissed on 23-3-2007 and thereafter the petitioner filed revision before State Government. In that revision, initially stay was granted and after five years, the revision came to be dismissed. 5. Adv. Mr. Patnoorkar, appearing for the petitioner, contends that the order passed is in breach of principles of natural justice and hence opportunity of hearing needs to be given to the petitioner. According to him, from 1972 till impugned action, the record of working of shop of the petitioner is clean and unblemished. 6. Learned AGP Mr. Pulkundwar, appearing for respondent nos.1 to 5, has supported the impugned order. He points out that a specific show cause notice was served upon the (4) petitioner and he was informed that his failure to reply would result in taking appropriate action in accordance with law. No reply was received and hence, District Supply Officer passed order of cancellation of authorization on 28-12-2004. He further states that appellate authority also has in appeal found that there was no reply filed to show cause notice. The order of respondent no.1 is also attempted to be justified by urging same thing. It is contended that the facts show serious charges and non-distribution of food grains to villagers over a long period. As the charges are of grave and serious nature, learned AGP urges that this this court should not interfere. In the alternative and without prejudice, he also points out that after impugned order was passed in October 2009, as no interim orders are operating, the said fair price shop may have been allotted to some third person. 7. The grievance of the petitioner is, of no complaint in relation to his shop from 1972 till 2004 and of non-supply of the report on the basis of which action has been initiated. Perusal of the impugned order dated 28-12-2004 shows that the District Supply Officer had received complaint on 26-5-2004 and then Tahsildar, Umri, had submitted a report on that complaint on 4-6-2004. After that report, for the first time on 22-11-2004, a show cause notice was given to the petitioner. The action itself (5) has been initiated after about 7 months. Show cause notice has been read out by learned AGP from records with him. Its perusal reveals that the petitioner was expressly warned that his failure to respond may result in appropriate action in accordance with Government guidelines. Learned Counsel appearing for the petitioner during hearing stated that copy of reply filed by him is not available on record with learned AGP. He states that only one copy of reply was prepared and the same was submitted to the District Supply Officer. In other words, the petitioner also does not have a office copy. 8. However, the said show cause notice does not reveal that copy of inquiry report dated 4-6-2004 or then copy of complaint dated 26-5-2004 was made available to the petitioner. Learned AGP has contended that if the petitioner was really interested, he could have appeared before District Supply Officer and demanded these documents. According to him, his failure to do so itself shows that he was having no defence to make. 9. I am not in a position to accept these arguments. A person who has run fair price shop from 1972 without any complaint (as alleged) and then has been challenging adverse orders from 2004 till date before various authorities, cannot be said to have no interest or then no defence to make. The (6) material on record does not show that copy of complaint dated 26-5-2004 or then copy of report dated 4-6-2004 was served upon the petitioner. 10. In this view of the matter, only with a view to give fair opportunity to the petitioner, the impugned orders will have to be set aside. 11. In the result, the petition is partly allowed. (i) The impugned order dated 28-12-2004, Exhibit "A" with the petition, passed by the District Supply Officer, Nanded, is quashed and set aside. So also, order dated 23-3-2005, Exhibit "B" with the petition, passed by the Deputy Commissioner (Supply), Aurangabad, is quashed and set aside. The impugned orders dated 24-2-2009 and 16-10-2009, Exhibits "E" and "F", respectively, with the petition, passed by the Hon. Minister for Food, Civil Supply & Consumer Protection, Maharashtra State, Mumbai, are also quashed and set aside. (ii) Matter is remanded to respondent no.3 / District Supply Officer for giving decision afresh. (iii) The petitioner is free to approach respondent no.3 within a (7) period of six weeks from today, for supply of copy of complaint dated 26-5-2004 or then for copy of report dated 4-6-2004. After receipt of such copies, petitioner to file reply to show cause notice within a further period of four weeks. Respondent no.3 / District Supply Officer shall thereafter consider oral submission of the petitioner and pass fresh orders in accordance with law. (iv) The effect of subsequent allotment, if any, as urged by learned AGP, shall also be looked into by the said authority. (v) As it appears that the petitioner did not submit any reply before the District Supply Officer within stipulated time or then did not appear before that authority at any point of time demanding hearing, the petitioner shall pay costs of Rs. 10,000/- [Rupees ten thousand] to the office of respondent no.3 within a period of six weeks from today. (vi) If the costs are so paid, the respondent no.3 shall proceed further as mentioned above. 12. Rule is made absolute according. 13. Authenticated copy of this judgment, duly (8) authenticated by Court Shirastedar, be supplied to the learned AGP, as per his request. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp7187