1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.907 OF 2008 //UNREPORTED// Date of decision:1/9/2010 For approval and signature HON'BLE MR. JUSTICE S.B.DESHMUKH HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/. may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/907-08wp 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.907 of 2008 1. Damodhar s/o Ramkrishna More, Age: 45 years, Occu: Business, r/o Nalvihara, Tq.Jafrabad, Dist. Jalna. 2. Rajendra s/o Aabaji Pachrne, Age: 35 years, Occu: Business, r/o. Pokhari, Tq.Jafrabad, Dist. Jalna. 3. Shrimant s/o Dagduba Bankar, Age: 55 years, Occu: Business, r/o Butkheda, Tq. Jafrabad, Dist. Jalna. 4. Pandharinath s/o Shenphad Kshirsagar, Age 55 years, Occu: Business, r/o Merkheda, Tq. Jafrabad, Dist. Jalna. 5. Ismailkhan s/o Ibrahimkhan, Age: 50 years, Occu: Business, r/o. Akola (Dev), Tq.Jafrabad, Dist.Jalna. ...PETITIONERS VERSUS 1. The State of Maharashtra, Through Secretary, Food & Civil Supplies Department, Mantralaya, Mumbai. 2. The Collector, Jalna, Dist. Jalna. 3 3. The District Supply Officer, Jalna, Dist. Jalna. 4. The Tahsildar, Jafrabad, Tq. Jafrabad, Dist. Jalna. ...RESPONDENTS ... Mr. S.J.Salunke, Adv., for the petitioners. Mr. V.B.Ghatge, AGP, for respondent State. ... CORAM: S.B.DESHMUKH AND K.U. CHANDIWAL, JJ. DATE : 1/9/2010 *** ORAL JUDGMENT: ( Per S.B.Deshmukh, J.) 1. We have heard learned Counsel Mr. S.J.Salunke for the petitioner and learned Assistant Government Pleader for respondent nos. 1 to 4. Rule, made returnable forthwith. Heard finally by consent of the parties. 2. There are five petitioners before this Court in this writ petition. They have alleged that they are licensees and the respondent authorities have granted the kerosene retail licenses in their favour in the year 1990. Since then, according to the petitioners, without any complaint of any card holders, they are doing 4 business by following all the Rules and regulations. According to them, they are getting the prescribed quota of kerosene, to be distributed to the card holders affiliated to their respective fair price shops or the establishments. 2. Petitioners have claimed that there is rise in population in the area, however, the respondent authorities have not added cards to the respective shops or dealerships of the present petitioners. It is further stated that, in the year 2006, the State Government has taken a decision to cancel the retail kerosene licenses and fair price shops. There was litigation. The State Government, in the year 2007, faced with the litigation, withdrew its decision. Such withdrawal, according to the petitioners, has taken place in the month of Nov.,2007. Counsel for the petitioners submits that, on 3rd Nov., 2007, the respondent no.1 i.e. the State took a decision. That Government Resolution is annexed with this Writ Petition. According to petitioners, respondent no.3 has published proclamation and invited applications for new kerosene retailers from Self Help Groups in the villages of the petitioners where they are already holding licenses and selling kerosene as retailers. This decision is dt.25th Jan.,2008, according to petitioners, is contrary to decision 5 dt.3rd Nov.,2007. This petition appears to have been filed before this Court on 5th Feb.,2008. 3. Petitioners approached to this Court with following prayers: "(A) The record and proceedings of the case may kindly be called for; (B) The writ petition may kindly be allowed and by issuing writ of certiorari or any other writ or directions and orders of like nature, be pleased to quash and set aside the proclamations dated 25.1.2008 which are at Exhibit "C" issued by the District Supply Officer, Jalna. (C) Pending hearing and final disposal of this writ petition, the respondent authorities may kindly be restrained from proceeding(s) on the basis of proclamations which are at Exhibit "C". (D) Pending hearing and final disposal of this writ petition, the respondent authorities may kindly be restrained from taking any coercive action against the petitioners and the respondent authorities be directed not to reduce or disturb the present quota of kerosene of the petitioners as a kerosene retailers. (E) Ad interim relief in terms of prayer clause "C" and "D" may kindly be granted in favour of the petitioners. (F) Any other appropriate and equitable relief may kindly be granted in favour of the petitioners. " Amongst these prayers, prayer clause 21(B) seems 6 to be the principal prayer, seeking writ of mandamus for quashing and setting aside Exhibit C - proclamation dated 25th of Jan.,2008, issued by the District Supply Officer, Jalna. 4. This petition was before this Court on 13th Feb.,2008. Learned A.G.P. was present before the Court on behalf of respondent nos.1 to 4 who sought time and the matter was adjourned to 20th Feb.,2008. By way of interim relief, respondents were directed not to curtail the kerosene quota of the petitioners till further orders and that is how the petitioners are protected by this Court till today. 5. We are concerned with two orders issued by the State Government under the provisions of Essential Commodities Act, 1955. First one is the Maharashtra Scheduled Commodities ( Regulation and Distribution) Order, 1975 ( hereinafter referred to as "Order of 1975" for short). Another order, which is relevant, is Maharashtra Kerosene Dealers Licensing Order, 1966 ( hereinafter referred to as the said Order, 1966, for short). These two orders empower the State Government to lay down a policy decision and/or make available appropriate mechanism for distribution of food grains and/or authorization of fair price shops, to distribute food grains under the first Order of 1975. So far as 7 distribution of kerosene is concerned, the second Order is relevant under which the State Government is empowered to launch a mechanism or to lay down a policy decision. Ultimately, it is the discretion of the State Government to lay down a policy for distribution of food grains and kerosene. Such system/policy decision, in fact, are popularly known as Public Distribution System ( hereinafter referred to as "PDS" for the sake of brevity). Objective of such system is to make available such essential commodities to common public without hassles and at a reasonable price, to that of market price. The State, while acting as a Welfare State, came up with various policies. 6. Learned Counsel for the petitioner referred to one of the policy laid down by the State Government somewhere in the year 1993. A statement is made in the petition that petitioners are distributing kerosene for pretty long time. Counsel appearing for the petitioners submits that the petitioners, on the date of filing of the writ petition, were holding valid kerosene licenses issued by the authorities. He points out distinctively the case of petitioner no.3 Mr.Shrimant s/o Dagduba Bankar, whose kerosene license issued by the authority at appropriate time, was in existence on the date of filing of the writ petition, has 8 been renewed by the authority in accordance with the provisions of law up-till 31st Dec.,2010. Photo copy of the said license is pointed out to us by learned Counsel for the petitioner, which is at page No.14. It is true that petitioner no. 3 Shrimant s/o Dagduba Bankar holds license No. 79/93 to distrubute kerosene within the limits of village Butkheda, taluka Jafrabad, Dist. Jalna, up-till 31st Dec.,2010. On enquiry, Counsel for the petitioner fairly concedes that the renewed license in favour of petitioner nos. 1, 2, 4 and 5, as of today, are not placed on record. We have recorded date of filing of the writ petition, grant of interim relief by this Court and pendency of this Writ Petition till today. Learned Assistant Government Pleader has pointed out affidavit-in-reply at page no.28 of the compilation. At the outset, the learned Counsel appearing for the petitioners, makes a grievance that the copy, which is supplied to him, makes mention of the name of the petitioners as Mantha Taluka Swasta Dhanya Dukandar Sangh. Based on such photo copy, he submits that the affidavit filed on behalf of the State is stereotype. Copy of affidavit filed in another writ petition is picked up and filed in this Case. We have seen our own files and, at page no.28, we find that the name of the petitioner is Damodhar s/o Ramkrishna More i.e. present petitioner no.1. The number of the writ petition is also correctly 9 mentioned as Writ Petition No.907/2008. In our opinion, no importance can be attached to such submission. The petitioners, on the date of filing of the writ petition, were dealing in kerosene as a licensee are well acquainted with the respondent authorities and vice-versa. On such technicality, it is not possible for us to extend any protection to the petitioners. 7. Learned Assistant Government Pleader points out the order passed by the Hon'ble Supreme Court. Distribution of the essential commodities and kerosene to the poor persons or beneficiaries is one aspect of the issue. The persons who are working in the system or acting as retailers, are rather interested in such system, for the reason that such distribution benefits them, in accordance with the State policy. In substance, there is a conflict amongst a group of few persons who are blessed with licenses by the authorities and a large group of the society who is in requirement of such commodities for their daily sustenance. This conflict is between few individuals and large chunk of the society. The Hon'ble Supreme Court, considering the issue from this State i.e. State of Maharashtra, has passed order, which is pointed out to us by learned Assistant Government Pleader. It is I.A.No.90 IN Writ Petition (C) No.196/2001 ( People's Union for Civil Liberties 10 Vs. Union of India and others). The order passed by the Hon'ble Supreme Court reads as under: " We have heard learned Counsel for the parties. As an interim measure, the State of Maharashtra is permitted to issue licences for Fair Price Shops and Kerosene retail shops to Self Help Groups. They may distribute it through Gram Panchayat, Co- operative Society, Women/Cooperative Society run by women, Ex-Army Co-operative Society, Handicapped, Widows and greater priority would be given to the Widows of Army men. " Thus, the Honourable Supreme Court, in our view, has made interim arrangement by this order with two objectives that the beneficiaries must get the food grains and kerosene as per the State policy through the agencies named and listed by the Hon'ble Supreme Court. We are aware that one of the licence granted to the petitioner no.3 by the authority concerned is valid till 31st Dec.,2010. This may not be a ground to pass order contrary or inconsistent to the order passed by the Hon'ble Supreme Court. In our view, the petition before this Court, is sans merit, needs to be dismissed by vacating the interim order. 11 8. Learned Assistant Government Pleader has also pointed out another order of this Court in Writ Petition Nos.698/2008 with 736/2008, 737/2008 and 1799/2008. We are in agreement with this order. Direction is already given by this Court and the Honourable Supreme Court to the State Government. We are not repeating or giving any direction to the State Government. 9. Writ Petition stands dismissed. Interim relief stands vacated. Rule stands discharged. No costs. (K.U.CHANDIWAL) (S.B.DESHMUKH) JUDGE JUDGE ... agp/907-08wp