1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 9397 OF 2010 Sunil s/o Tukaram Nerkar .. PETITIONER VERSUS The State of Maharashtra & others .. RESPONDENTS Mr. V.D. Sapkal, advocate for the petitioner. Mr. K.J. Ghute Patil, AGP for the State. Mr. V.R. Dhorde, advocate for respondent no. 5. ===== CORAM : R. M. BORDE, J. DATE : 26 th OCTOBER, 2010. PER COURT : 1 Petitioner herein is raising exception to the order passed by the Minister on 26-7-2010 on consideration of an application tendered by the petitioner seeking stay to the order passed by the District Supply Officer directing stoppage of supply of kerosene in favour of the petitioner / licence holder. 2 Petitioner herein is also holder of wholesale licence for supply of 2 kerosene. He tendered complaint to the Chief Secretary on 7-6-2010 making complaint against the two licence holders. In the complaint tendered to the Chief Secretary, the petitioner had made a grievance that the licence holder i.e. respondent herein does not have permission for storage of kerosene, as required under rule. It is contended that storage is required to be approved. Unless such approved storage facility is available, supply of kerosene to such of those licence holders inclusive of the respondent herein shall have to be stopped. On consideration of the application tendered to the Chief Secretary, it appears that certain enquiry was directed and it was reported that the respondent does not have approved storage facility. Considering this aspect of the matter, the Additional Secretary, Food & Civil Supply department issued directives to the Collector in view of communication dt. 6-7-2010 directing to stop supply of kerosene to such licence holders. It is also further directed to take appropriate action against the defaulting officers. The directives are issued by the Under Secretary on the assumption that respondent herein does not have approved storage facility and in the absence of having such approved facility for storage of kerosene, supply to such licence holder shall have to be stopped. On the basis of instructions issued by the Under Secretary it appears that the District Supply Officer has issued order directing stoppage of supply of kerosene to 3 the respondent / licence holder since July 2010. The order in respect of stoppage of supply was passed by District Supply Officer on instructions from the State Government without giving opportunity of hearing to respondent / licence holder. It further appears that the concerned respondent tendered an application to the Minister making grievance in respect of order issued against him and requested for grant of stay. It is the contention of the respondent in the application, which is in the form of letter addressed to the Ministrer, that as per the circular of the State Government it was incumbent upon the licensee to secure storage licence up to November 2003. He has already tendered application on 5-8-2001. However, the application is still pending with the State Government. It is contended that in view of the tracking system adopted by the State Government in pursuance to the policy dt. 13-1-2006, there is no need of having storage facility for licence holder as supply given through tanker is monitored till stock is distributed to retailers. Even if assuming that at any point of time the storage of kerosene is required to be made, the licencee should possess the required licence issued for operating the tanker. It was therefore requested to grant stay to the order passed by the District Supply Officer which is issued without extending opportunity of hearing to concerned respondent / licencee. The order passed by the Minster considering the application / letter issued to the 4 Minister on 26-7-2010 is subjected to challenge in this petition. 3 My attention is also invited to communication dt. 7-10-2010 whereby the officer has issued communication noting therein that the application tendered with the Minister appears to have been treated as revision application and on consideration of such application, stay for limited period upto 11-11-2010 is granted. 4 Learned counsel for the petitioner has assailed the order firstly on the ground that the necessary authorisation issued by the Collector for shorage of kerosene is not secured by the respondent and as such he is not entitled to receive any supply of kerosene. It is further contended that the licensee has not secured the storage licence since last 15 years and as such the order that was issued by the District Supply Officer is proper and correct. It is also pointed out that the order passed by the District Supply Officer is not liable to be directly challenged to the Minister. It is further contended that the letter addressed to the Minister cannot be considered as a revision application. The order of stay granted by the Minister is also a non-speaking order and is not in accordance with the guidelines issued by High Court. My attention is invited to the judgment in the matter of Savitri Chandrakesh Pal vs. State of 5 Maharashtra reported in 2009(4) Mh.L.J. 406 and it is contended that there is no revision application presented by respondent complying with the guidelines issued by this court. The order of stay granted by Minister is also not in accordance with the parameters laid down in the said judgment. It is further urged that the order passed by the Minister needs to be quashed and set aside. 5 Learned counsel for the respondent has contended that the petitioner herein is also a licensee and deals with the supply of kerosene as a wholesale dealer. It is contended that there is a crime registered against the petitioner for offence punishable under sections 3 and 7 of the Essential Commodities Act on 18-2-2010. The petitioner has a suspicion that the respondent herein is instrumental in initiating criminal prosecution against him and as such he has made complaint to the Chief Secretary against the respondent herein. It is contended that the complaint made to the Chief Secretary is not within contemplation of the provisions of Essential Commodities Act or the Rules or the orders issued under the said act. It is contended that the order passed by the Under Secretary is also not in consonance with the provisions of Act or orders issued under the Essential Commodities Act. Acting upon the directives issued by the Under Secretary, 6 the District Supply Officer has issued an order directing stoppage of supply of kerosene in respect of which grievance is made by the respondent to the Minister which according to the respondent is just and proper. it is contended that as the orders are issued at the instructions of the Under Secretary of State, grievance in that regard is made to the Minister is proper and the Minister was justified in entertaining the application as a revision application and granting stay for limited period. It is contended that the licence in respect of storage facility is not required in view of the revised system adopted in respect of distribution in accordance with the resolution dt. 13-1-2006. My attention is also invited to the communication dt. 29-1-2003 issued by the Secretary, Food & Civil Supply department wherein it is recorded that the licensee possessing licence in form no. 11 or 16 would be entitled to grant of the wholesale licence and the licence issued in respect of supply of kerosene would be considered as valid. 6 I have heard the arguments advanced by respective counsel appearing for the parties. Application tendered with the Minister on 26-7-2010 is stated to be prescribed for further hearing on 11-11-2010. It is also informed that the order of stay granted by the Minister is limited until 11-11-2010. In these circumstances, the ends of justice would be met if the 7 Minister is advised to hear and decide the pending application on the given date. The Minister may also hear the application in respect of continuation of interim relief if he is not in a position to decide the revision application on the given date. So far as the objection raised by the petitioner in respect of entertainability of the revision application by the Minister and the application being not in the format or in accordance with the guidelines issued by the High Court is concerned, it would be open for the Minister to consider said objection raised in that behalf. It would also be necessary for the learned Minister to hear the petitioner herein while deciding the revision application. The petitioner be permitted to implead himself as respondent in the proceedings. It would be inappropriate to make any comment in respect of the merits of the controversy involved in the matter as the learned Minister would be required to deal with the matter and decide the same. It appears that as the action is taken at the behest of the Under Secretary and as the supply of kerosene has been stopped in pursuance to the directions issued in that behalf by the District Supply Officer, the respondent herein has made a grievance in that regard by tendering an application to the Minister. Without going into the aspect as regards permissibility to entertain the grievance by the Minister, I leave the question open for consideration by the concerned Minister as regards the entertainability of revision application. So 8 far as the question raised in the petition as regards necessity to secure storage licence for kerosene is concerned, the said issued also is required to be dealt with by the Minister. The change brought about in view of the system of supply of kerosene according to Government Resolution dt. 13-1-2006 is concerned, it would also be the matter of consideration by the learned Minister. Considering all these aspects, I deem it appropriate to direct the learned Minister to decide the pending revision application as expeditiously as possible preferably by the end of November 2010. With these directions, the petition stands disposed of. Interim relief granted by this court stands vacated. 7 Pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE, J.) dyb/office/wp9397.10.odt