1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 8026 OF 2009 Govind S/o Nemchand Devasale, Age 45 years, Occu. Agriculture, r/o Kasarsirshi, Tq. Nilanga, Dist. Latur. ....Petitioner. Versus 1] The State of Maharashtra through Secretary, Food, Civil Supply and Consumer Protection Department, Maharashtra State Mantralaya, Mumbai-32. (Copy to be served on the Government Pleader High Court of Judicature of Bombay bench at Aurangabad.) 2] The District Supply Officer, Latur, Tq. & Dist. Latur. 3] The Deputy Commissioner (Supply), Aurangabad Division, Aurangabad. 4] The Minister for Food and Civil Supply and Consumer Protection Department, Mumbai. 5] Sagar S/o Anil Devsale, Age 22 years, Occu. Agriculture, R/o Kasarsirshi, Tq. Nilanga, Dist. Latur. ....Respondents. ------ 2 Shri V.D. Salunke, Advocate for petitioner. Shri D.R. Kale, A.G.P. for respondent Nos. 1 to 4. Shri Murar Deshpande h/f V.S. Patil, Advocate for respondent No. 5. ------ CORAM : R.K. DESHPANDE, J. DATE : 07th July, 2010. ORAL JUDGMENT : 1. This Writ Petition challenges the order dated 30/07/2009 passed by the Minister, Food Civil Supply and Consumer Protection Department, Mantralaya, Mumbai in revision No. 21/2009. By this order the Minister has set aside the order dated 17/11/2008 passed by the Deputy Commissioner (Supply), Aurangabad Division, Aurangabad remanding the matter back for fresh decision by the Additional Collector, Latur. 2. Notice in this matter was issued to the respondents on 02/12/2009. The learned A.G.P. appears for respondent Nos. 1 to 4, whereas Shri Murar Deshpande h/f Shri Patil for respondent No. 5. The learned counsels for the parties stated that matter can be finally disposed of at the admission stage. Hence, Rule, Rule made returnable forthwith by consent of parties. 3 3. The facts of the case are as under :- One Nemchand Devsale was the semi-wholesaler Kerosene dealer holding kerosene No. 17 of 1993. He expired on 19/12/1998. Hence the licence of kerosene held by him was transferred in the name of his widow Smt. Shevantabai on 17/08/2002. Since Smt. Shevantabai was unable to do the business, due to old age, she submitted a proposal of transfer of licence in the name of her grand-son who is respondent No. 5 herein Sagar Anil Devsale. The District Supply Officer, by his order dated 11/03/2008 transferred the kerosene licence in the name of respondent No. 5. 4. The petitioner who is one of the sons of original licence holder Nemchand, preferred an appeal as per the provisions of Section 14 of Maharashtra Kerosene Business Licence Order, 1966. The Deputy Commissioner (Supply), Aurangabad Division, Aurangabad passed an order dated 17/11/2008 setting aside the order dated 11/03/2008 passed by the District Supply Officer, Latur and the same order was approved by the Additional Collector, Latur. 5. It seems that respondent No. 5 preferred revision before the Minister, Food Civil Supply and Consumer Protection Department, Mantralaya, Mumbai, by order dated 30/07/2009 the Minister allowed 4 the revision and quashed and set aside the order dated 17/11/2008 passed by the The Deputy Commissioner (Supply), Aurangabad Division, Aurangabad and confirmed the order dated 11/03/2008 passed by the District Supply Officer, Latur which was approved by the Additional Collector, Latur, granting approval for transfer of licence in the name of respondent No. 5. This impugned order is the subject matter in the instant writ petition. 6. Shri V.D. Salunke, learned counsel appearing for the petitioner, relying upon the Government Resolution dated 01/12/1998 has urged that the kerosene licence can be transferred only in the name of legal heirs of the deceased licence holder. He submits that the Government Resolution defines legal heirs means husband/wife or educated son or educated un-married daughter. According to him, the respondent No. 5 does not fall in any of these categories, and hence, the order of transfer of kerosene licence in the name of respondent NO. 5 who is grand-son of original licence holder Nemchand was illegal. According to him, the respondent No. 5 was not eligible for getting transfer of kerosene licence, as per the terms and policy of the Government, and therefore, the Deputy Commissioner (Supply), Aurangabad Division, Aurangabad by his order dated 17/11/2008 has rightly remanded the matter back to the lower authority for reconsideration, and as such an order should not have interfere by the Minister. 5 7. The learned Assistant Government Pleader along with Shri Murar Deshpande have placed reliance upon the Government Resolution dated 25/05/2004. According to them, this Government Resolution confers total discretion upon the licence holder to nominate a person of his choice for transfer of kerosene licence, in the event if he/she unable to carry on business for the reasons stated under the said Government Resolution. According to them, upon death of original licence holder Nemchand, licence No. 17 of 1993 was transferred in the name of his widow Smt. Shevantabai and Smt. Shevantabai was unable to carry on the business, and therefore, she had proposed the name of respondent No. 5 for transfer of kerosene licence. According to them, the Minister was right in confirming the order dated 11/03/2008 passed by the District Supply Officer, Latur, as was approved by the Additional Collector, Latur and the Deputy Commissioner (Supply), Aurangabad Division, Aurangabad had committed an error in remanding the matter for consideration afresh. After going through the order passed by the Minister, which is impugned in the present petition., it is apparent that no reasons are recorded in the matter and controversy involved in the matter is not at all considered, merely facts were reproduced and the abrupt conclusion has been drawn that the licence is required to be transferred in the name of respondent No. 5. Hence, the order is liable to be quashed and set aside on this ground of non application of mind. 8. There appears to be several disputed question of facts, 6 including the interpretation of various clauses of Government Resolutions relied upon by the petitioner and respondent No. 5. What is the effect of Government Resolution dated 25/05/2004 on the earlier Government Resolution dated 01/12/1998, is also required to be considered. It is also required to be considered as to whether both the Government Resolutions are operating in different fields and whether second Government Resolution confers exclusive discretion upon the licence holder, to permit transfer of licence in the name of another person of his/her choice, irrespective of the provision in the Government Resolution dated 01/12/1998. Hence, all such aspects have not all been considered by the authorities below. The Deputy Commissioner (Supply), Aurangabad Division, Aurangabad, was therefore, right in remanding the matter back to the original authority for reconsideration. The Minister could not have interfere with such an order. 9. In the result, the instant Writ Petition is allowed, the order dated 30/07/2009 passed by the Minister, Food, Civil Supply and Consumer Protection Department, Mantrlaya, Mumbai in revision NO. 21 of 2009 is hereby quashed and set aside. The matter is remitted back to the District Supply Officer, Latur for decision a fresh on question of transfer of kerosene licence. All the questions raised by the parties are left open to be considered and none of the observation made any of the authorities below in the orders shall come in the way of District Supply Officer, while considering the matter afresh. Rule is made absolute in 7 above terms with no order as to costs. [ R.K. DESHPANDE, J. ] SDM*8026.09WP(J)