1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.9141 of 2005 Shri Jayaprakash Babulal Agarwal .. Petitioner V/s. 1. The State of Maharashtra & ors. .. Respondents Mr.P.A. Pol for petitioner. Mrs.M.P.Thakur, AGP for respondent no.1 Mr.M.V.Aiya for respondent no.4. ----- CORAM : SMT.RANJANA DESAI & SMT.ROSHAN DALVI, JJ. Dated : 18 th & 21 st January 2008 ORAL JUDGMENT : (Smt.Ranjana Desai, J.) 1. The petitioner claims to be an educated unemployed person falling under second and third priority for allotment of ration shop. The petitioner has filed this petition being aggrieved by order dated 24.11.2004 passed by the 3rd respondent i.e. the Controller of Rationing, Churchgate, Mumbai and order dated 18.8.2005 passed by the 2nd respondent i.e. Minister, Food and Civil supplies Department, Mantralaya, Mumbai. The 4 th respondent is a person to whom the concerned ration 2 shop is allotted. 2. The case of the petitioner is that the 3rd respondent gave an advertisement in newspaper dated 25.6.2001 inviting applications from public for allotment of ration shops for the area of Prabudha Nagar, Tata Colony, Chembur. The advertisement called upon the applicants to submit their applications on or before 30.7.2001 in the office of the 3rd respondent. Pursuant to the said advertisement the petitioner applied in the required format within stipulated period. The petitioner received an order dated 1.10.2002 passed by the 3rd respondent rejecting his application. The petitioner was informed that another applicant Kumari Sandhya Vishvanath Bhosale belonging to scheduled caste category was found qualified. The petitioner as well as the 4 th respondent preferred revision applications before the 2nd respondent. By an order dated 16.1.2003, the State Minister confirmed the order of the 3rd respondent and rejected the revision applications. 3. It appears that in the meanwhile Kumari Sandhya Bhosale 3 informed the Controller of Rationing that she did not want to run the ration shop allotted to her. The grievance of the petitioner is that the 3rd respondent by his order dated 24.11.2004 without issuing new advertisement granted ration shop to the 4th respondent. Being aggrieved by this order, the petitioner filed a revision application before respondent no.2 under Clause 30 of the Maharashtra Foodgrains Rationing (Second) Order, 1966 (for short “the said Order”). His revision application was dismissed by order dated 18.8.2005 passed by the 2nd respondent. Being aggrieved by these two orders, the petitioner has approached this court. The petitioner seeks quashing of the said two orders. 4. Learned counsel for the petitioner contended that the 2nd and 3 rd respondents have granted ration shop to the 4th respondent in flagrant violation of the relevant rules. Our attention is drawn to the said Order. It, inter alia, provides for a procedure which the authorities are supposed to follow prior to allotting ration shops. Learned counsel contended 4 that before allotting the ration shop the Controller of Rationing has to issue an advertisement calling for applications and after considering the rival claims on merits the allotment order has to be issued. This procedure is mandatory and if this procedure is not followed, the allotment will have to be set aside. In this connection, he has relied upon judgment of Bali Co-operative Consumer Society Ltd. vs. The State of Maharashtra and others decided by Division Bench consisting of A.C. Agarwal & Nijjar, JJ. on 11.8.1998 in Writ Petition No.2971 of 1998 and in Suryakant Shinde vs. State of Maharashtra and others decided by Division Bench consisting of F.I.Rebello and S.P.Kukday, JJ. on 22.3.2005. 5. Learned AGP Mrs.Thakur submitted that the 3rd respondent has rightly passed order under Clause 3 of the said order. She submitted that Clause 3 confers wide powers on the 3rd respondent to issue authorisation and Clause 3(4) permits him even to suo motu add to, amend, vary, suspend, withdraw or cancel any authorisation. She further 5 submitted that under Clause 30 the 2nd respondent has wide powers to revise the orders of the 3rd respondent. She also submitted that in this case convenience of card holders has been taken into consideration by both the authorities. It is a paramount consideration and, therefore, the impugned orders may not be set aside because the issuance of licence was not preceded by any advertisement. Learned AGP has also taken us through the affidavit of Madhukar Bodke, Assistant Controller of Rationing, Mumbai. 6. Section 3 of the Essential Commodities Act, 1955 confers powers on the Central Government to issue orders to control production, supply, distribution etc. of essential supplies. Under Section 5, the Central Government may by notification delegate the power to make orders for issuing notification under Section 3 to the State Government. In view of these provisions and with the concurrence of the Central Government, the Government of Maharashtra has issued the said order. 7. Clause 3 of the said order provides for issuance of 6 authorisation to shops. It states that authorisation has to be issued in accordance with provisions prescribed by or under the said order. Sub- clause (4) of Clause 3 states that the State Government or the Controller of Rationing may, at any time, whether at the request of the ration shop or authorised establishment or authorised agent or suo motu, after making such inquiry as may be deemed necessary, for reasons to be recorded in writing add to, amend, vary, suspend, withdraw or cancel the authorisation issued or deemed to be issued under this clause. This clause further states that where any such authorisation is suspended, withdrawn or cancelled, the person to whom the authorisation was issued shall forthwith deliver or cause to be delivered the same to the State Government as the case may be. 8. A bare reading of sub- clause (4) of Clause 3 makes it clear that it refers to addition, amendment, varying, suspension, withdrawal or cancellation of the existing licence. On the happening of any such event the said authorisation has to be delivered to the State Government or the Controller. This 7 clause does not contemplate power to issue new authorisation when the existing authorisation is cancelled. 9. Our attention is drawn by learned AGP to Government Resolution dated 12.11.1991. This resolution contains directions for issuing authorisation for ration shops, their establishment and their control. It sets out various categories and persons falling in these categories are issued authorisation according to the order of preference set out therein. Clause 2(a) thereof sets out the procedure to be followed before issuing authorisation. It states that in a place where population is 5000 or more, before allotting ration shop advertisement inviting applications has to be issued in local newspaper. Learned AGP on instructions from the Controller of Rationing, who is present in the court, states that this Government Resolution is being followed in the case of every allotment. In our opinion, therefore, it was obligatory on the part of the Controller of Rationing to follow it and issue a fresh advertisement and allot ration shop after Kumari Sandhya Bhosale expressed that she does not want 8 to conduct ration shop. 10. In his revisional jurisdiction the 3rd respondent i.e. Minister, Food and Civil Supplies Department confirmed the Controller's order after offering additional reason. In our opinion, the 3 rd respondent could not have confirmed the order passed by the 2nd respondent ignoring the important Government Resolution dated 13.11.1991. In his revisional jurisdiction under Clause 30, the 3rd respondent can, inter alia, call for the record of any proceedings of any officer exercising or failing to exercise the powers under the said order to add to, amend, vary, suspend or cancel any authorisation and may pass such order thereon as he thinks fit. Therefore, the 3 rd respondent has to revise an illegal order or an order where the officer has failed to exercise his power. But under this provision, the 3rd respondent cannot do something which the officer whose orders come before him for revision cannot do. Third respondent has to ensure that the 2 nd respondent confines himself to his jurisdiction and exercises the powers conferred on him properly. In this 9 case, the 3 rd respondent instead of curing the illegality by giving direction to the 2nd respondent to issue an advertisement perpetuated the illegality by confirming the 2nd respondent's order. Both the impugned orders, in our opinion, cannot be sustained. 11. In this connection, we must refer to judgment of this court in Shri Bali Co-operative Consumer Society's case (supra). In that case on the application of the petitioner society, it was granted ration shop. Application of respondent no.4 was rejected. However, a notice was subsequently issued to the petitioners directing them to show cause why the allotment in their favour should not be cancelled as complaints were received against them. In the meantime, respondent no.4 preferred a revision application before the Minister against the allotment of shop to the petitioner society. By order dated 24.4.1998, the 2nd respondent held that there was no substance in the complaints filed against the petitioner society but at the same time a direction was issued to allot a ration shop to the 10 4 th respondent. The petitioner society challenged the said order in this court. This court set aside the impugned order holding that the allotment of second shop should have been made by issuing an independent advertisement inviting applications from eligible categories of persons. No such advertisement was issued and hence no allotment could have been made in favour of respondent no.4. While coming to this conclusion this court referred to the judgment of the Supreme Court in S.G. Jaisinghani vs. Union of India & ors. AIR 1967 SC 1427 where the Supreme Court has held that absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based and in a system governed by rule of law, discretion when confirmed upon executive authorities must be confined within clearly defined limits. 12. We may also refer to Suryakant's case (supra) where after referring to the above judgment this court has in somewhat similar fact situation taken the same view. There pursuant to the advertisement Controller of Rationing allotted shops in 11 favour of the petitioner and respondent no.4 therein. Names of respondent nos.5 and 6 were not recommended. Respondent nos.5 and 6 aggrieved by the selection preferred revision applications before the Minister, Food & Civil Supply Department. The Minister while holding that ration shops were rightly awarded to the petitioner and respondent no.4 also allotted shops to respondent nos.5 and 6 holding that there is a possibility of increase in population and units. The said order was challenged before the court. This court referred to relevant provisions, more particularly Clause 30 of the said order. This court also referred to Government Resolution dated 12.11.1991 to which we have made a reference. This court observed that while exercising power under Clause 30 revisional authority exercising power of revision does not have the power to grant additional shops other than which were advertised and as per Government Resolution dated 9.6.2000 a fresh notification/ advertisement will have to be issued for issuance of new ration shop. Thus revisional authority must also follow the 12 procedure prescribed under the said order and the relevant Government Resolutions. We are in respectful agreement with this view. 13. We are mindful of the fact that such exercise would entail more expenses and may inconvenience people. So far as inconvenience is concerned, learned AGP on instructions from the Controller of Rationing, who is present in the court, states that till new allotment is made all the cardholders will be attached to nearby ration shops and intimation will be given to all of them. So far as argument that State will have to incur expenses is concerned, in our opinion, procedure prescribed in law cannot be bypassed on the ground of expenses. 14. In view of the above, we will have to set aside the impugned orders. Learned counsel for the 4th respondent contended that till the State Government carries out the exercise of issuing advertisement and allotting ration shop, 4th respondent may be permitted to conduct the shop. We are unable to do so. Once authorisation is set aside, a person 13 cannot be allowed to conduct the shop. This request is, therefore, rejected. 15. In the circumstances, we pass the following order:- (i)Order dated dated 24.11.2004 passed by the 3rd respondent i.e. the Controller of Rationing, Churchgate, Mumbai and the order dated 18.8.2005 passed by the 2nd respondent i.e. Minister, Food and Civil supplies Department, Mantralaya, Mumbai are quashed and set aside. (ii)The Controller of Rationing i.e. respondent No.3 shall issue a fresh advertisement in accordance with the relevant Government Resolutions and follow the procedure laid down therein and issue fresh authorisation in accordance with law. It will be open to the petitioner as well as the 4th respondent to apply for authorisation along with others. The Controller of Rationing is present in the court. He states that necessary steps will be taken to ensure that cardholders are not inconvenienced. Cardholders will be informed about this order and they will be attached to nearby shops. Learned AGP states that the entire procedure of issuing 14 advertisement and allotment of new ration shops will be completed at the earliest and in any event within a period of six months. We record and accept this statement. We make it clear that we are not expressing any opinion as to who is eligible to get ration shop. The Controller of Rationing will take an independent decision. 16. We are informed that by 1st of February 2008 all the cardholders will be attached to nearby ration shops. Hence, till then the 4th respondent is permitted to continue with the ration shop. 17. The petition is disposed of in the aforestated terms. There will be no order as to costs. (SMT.RANJANA DESAI, J.) (SMT.ROSHAN DALVI, J.) 15