(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 7750 OF 2010 1. Bhagwat s/o. Bandu Galdhar, Aged : 40 years, Occupation : Agriculture, R/o. Aadpimpri, Taluka : Georai, District : Beed. 2. Sakhahari s/o. Babasaheb Galdhar, Aged : 33 years, Occupation : Agriculture, R/o. Aadpimpri, Taluka : Georai, District : Beed. .. Petitioners. versus 1. The State of Maharashtra, Through its Principal Secretary, Food, Civil Supplies and Consumer Protection Department, Maharashtra State, Mantralaya, Mumbai - 32. 2. The Hon'ble Minister, Food, Civil Supplies and Consumer Protection Department, Maharashtra State, Mantralaya, Mumbai - 32. (2) 3. The Deputy Commissioner (Supply), Aurangabad Division, Aurangabad. 4. The District Supply Officer, Beed, District : Beed. 5. Kalyan s/o. Vitthal Galdhar, Aged : Major, Occupation : Agriculture, R/o. Aadpimpri, Taluka : Georai, District : Beed. .. Respondents. ....................... Mr. P.S. Dighe, Advocate, holding for Mr. V.R.Dhorde, Advocate, for the petitioners. Mrs. V.A. Shinde, Assistant Government Pleader, for respondent nos.1 to 4. Mr. D.D. Pokharkar, Advocate, for respondent no.5 / caveator. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 3RD MARCH 2011 ORAL JUDGMENT : 1. Heard Adv. Mr. P.S. Dighe, holding for Adv. Mr. V.R. (3) Dhorde, for the petitioners; learned AGP Mrs. V.A. Shinde, for respondent nos.1 to 4, and Adv. Mr. D.D. Pokharkar, for respondent no.5. 2. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 3. Short contention of Adv. Mr. Dighe is, revision challenging cancellation of authorization of fair price shop of petitioner was decided against respondent no.5 by the Hon. Minister on 29th August 2009. Respondent no.5 then filed a review under Clause 24(2) of the Maharashtra Scheduled Commodities (Regulation of Distribution) Order, 1975 and that has been allowed by succeeding Hon. Minister on 4-8-2010. According to the learned Counsel, only three lines in last paragraph of the earlier order have been changed and a result to the contrary has been pronounced. He argues that when ingredients for review were not made out, the said order passed on 4-8-2010 is without jurisdiction. It is also pointed out that this court has already stayed that order. 4. Adv. Mr. Pokharkar, appearing for respondent no.5, has urged that application for review was filed by respondent no. 5 in person. In review, he pointed out that though a reply was (4) filed to show cause notice, the appellate authority and the Minister has proceeded as if there was no reply. He invites attention to Exhibit R-2 to urge that such reply was filed on 17-7-2008. He further states that the Tahsildar had on 20th May 2008 submitted a report to Police authorities mentioning that there were no irregularities or malpractices in managing his fair price shop. According to him, this document is also not looked into. He states that in view of this position, the order passed in review needs to be maintained and no interference is warranted. 5. In the alternative and without prejudice, Adv. Mr. Pokharkar states that as respondent no.5 has filed review application in person, if any technical lapses are noticed, respondent no.5 may be permitted to move Hon. Minister afresh or then, the matter should be remanded back to Hon. Minister for fresh consideration. 6. Adv. Mr. Dighe, in reply, points out that in application for review, there is no ground that reply filed by respondent no.5 was lost sight of by earlier authorities. He points out that even in the impugned order, the fact of not filing reply appears. He further states that as the ingredients warranting exercise of review jurisdiction are not satisfied, there is no question of any remand in the matter. (5) 7. After hearing respective Counsel, I find that in first order passed by the District Supply Officer, Beed, on 21-7-2008, the fact of filing reply on 17-7-2008 by respondent no.5 is reflected. However, in appellate order dated 25-9-2008, the said fact is missed and it is recorded that there was no reply filed by him. Before Hon. Minister on first occasion, again the position does not undergo any change. Said order dated 29th August 2009 expressly mentions that respondent no.5 had not submitted any reply to show cause notice. Though the review application is not annexed with the petition, its reading by Adv. Pokharkar does not show a ground in this respect raised specifically for invoking that jurisdiction. The impugned order passed on 4th August 2010, in exercise of review jurisdiction, again reiterates that no reply was filed by respondent no.5 to show cause notice. Thus, the fact of filing reply to show cause notice is not the reason which has weighed the Hon. Minister while passing impugned order in exercise of review jurisdiction. 8. Perusal of relevant provision i.e. Clause 24(2) of the Maharashtra Scheduled Commodities (Regulation of Distribution) Order, 1975, reveals that review is possible if it is sought on account of discovery of new and important matter of evidence or then, on account of mistake or error apparent on the (6) face of record and lastly, for any other sufficient reason. The review application does not make out any ground as warranted by this provision. 9. Moreover, the first order passed by Hon. Minister on 29th August 2009 records that Tahsildar, Georai, had recorded statement of card holders after visiting village and that report specifically disclose the card holders not residing in village, members in their family residing and not residing in the village. As against this, in the impugned order, the succeeding Hon. Minister has recorded that Tahsildar has not specifically mentioned card holders not residing within village or then, even if head of the family was not residing, whether any members in his family were residing in village or not. Thus, apparently inconsistent reasons are recorded in succeeding order after perusal of very same record. 10. In this situation, I find that the respondent no.5 had failed to make out any ground for seeking review of the earlier order passed by the Hon. Minister on 29th August 2009, the impugned order is without jurisdiction and unsustainable. 11. In the result, the petition is allowed. (7) (i) The impugned order dated 4-8-2010, passed by respondent no.2, in Review Application No. VAM-1010/Pra.Kra. 260-10/N.P.21, reviewing the order dated 29-8-2009, is quashed and set aside. (ii) As the impugned order is quashed and set aside, amount of Rs. 5,000/- deposited by respondent no.5 in pursuance thereto, shall be refunded to respondent no.5 within a period of two months from today. 12. Rule is made absolute accordingly. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp7750