1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CIVIL REVISION APPLICATION No. 10 OF 2006 Nandbodhi Magaswargiya Grahak Sahakari Sanstha, Maryadit, through its Chairman, Uttamrao S/o Mukundrao Shinde, Age 64 years, Occu. R/o plot No. 1148, Sai Nagar, N-6, Cidco, Aurangabad. ...PETITIONER VERSUS 1] Leelabai W/o Sukhdeo Palaskar, Age 45 years, Occu. Household, r/o House No. 36, N-12, Hudco, Aurangabad. 2] District Supply Officer, Collector office, Aurangabad. 3] Food Grains Distribution Officer, Collector office, Aurangabad. 4] Additional Collector, Collector office, Aurangabad. 5] State of Maharashtra (Food, Civil Supplies and Consumer protection Department, through Collector of District Aurangabad, Collector office, Aurangabad. ..RESPONDENTS ... Mr. P.S. Dighe, Advocate for Petitioner Mr.S.L. Jondhale, Advocate for Respondent No. 1 Mr.V.H. Dighe, A.G.P. for respondent Nos. 2 to 5 CORAM :- S.S. SHINDE, J. JUDGEMENT RESERVED ON : 18th October, 2010 JUDGMENT PRONOUNCED ON : 28th October, 2010 2 JUDGMENT: This Civil Revision Application is filed, challenging the Judgment and Order dated 22th December, 2005 passed by the learned Civil Judge, Senior Division, Aurangabad Dist. Aurangabad below Exh. 30 in Regular Civil Suit No. 653 of 2005. The petitioner herein is the original defendant No. 5 and respondent No. 1 is original plaintiff in Regular civil Suit No. 653 of 2005. The respondent Nos. 2 to 4 are original defendant Nos. 2 to 4 in the said suit. 2. The plaintiff filed the suit with following prayer : “A] The Suit of the plaintiff may kindly be decreed with costs. B] That, the defendants be restrained from discontinuing the business carried by the plaintiff of fair price shop NO. 73 without following due procedure under by issuing the perpetual injunction and declare the orders dated 6/09/2005, 8/09/2005 and 22/08/2005 passed by the defendant Nos. 1 to 4 back and behind without hearing the plaintiff as null and void.” In the said Regular Civil Suit petitioner 3 herein filed application under Section 9-A of Civil Procedure Code, and prayed for framing issue of jurisdiction under Section 59-A of Civil Procedure Code and it be tried first. The original plaintiff filed say on the said application stating that the application is misconceived. The remedy available under the Act will operate as a bar to the Jurisdiction of the Civil Court, therefore, this application is not tenable. The learned Civil Judge, Senior Division, Aurangabad by his order dated 19th October, 2005 granted application and framed the preliminary issue thus : “ Whether this Court has jurisdiction to try the suit in view of Maharashtra Scheduled Commodities (Regulations & Distribution) Order 1975?” The said application filed by the petitioner herein was exhibited at Exh. 30. The learned Civil Judge, Senior Division, Aurangabad by his order dated 22th December, 2005 held that there is no express bar under Maharashtra Scheduled Commodities (Regulations & Distribution) Order 1975, to oust the jurisdiction of Civil Court. Being aggrieved by the said order dated 22th December, 2005, this Civil Revision Application is 4 filed by the original defendant No. 1. 3. The learned counsel appearing for the revision petitioner submitted that licence bearing No. 73, in respect of fair price shop and kerosene is given in favour of petitioner society and petitioner society is running the same in the Aurangabad city. In the year 1982, the petitioner society went in liquidation and administrator was appointed by the Assistant Registrar Co-operative Societies, Aurangabad, and the shop Nos. 73,77 and 78 were given to the employees of the petitioner society for running the same. Shop No. 73 was run by the husband of the respondent No. 1, namely Sukhdeo Palaskar who was the salesman of the petitioner society. In 2003, the petitioner society came up from liquidation. The application was filed with the authorities for handing over the fair price shop Nos. 73,77 & 78 to the society, as it was earlier run by the petitioner society. On 16th August, 2003, the husband of the respondent No. 1, running the fair price shop No. 73, expired. On 7th November, 2003, the District Supply 5 Officer, Aurangabad rejected the application of the petitioner for handing over the said shops No. 73,77 & 78 in favour of the petitioner society. Being aggrieved, petitioner society filed revision before the State Government, challenging the letter dated 7th November, 2003 issued by the District Supply Officer, Aurangabad. The Minister, Food, Civil Supplies Department, Mantralaya, Mumbai, on 18th August, 2004 allowed the said revision filed by the petitioner society, thereby directing to allot the shops No. 73,77 & 78 to the petitioner society. It is the case of the petitioner that on 04th February, 2005, the respondent No. 1, one of the two wives of said Shri Sukhdeo Palaskar made application to District Supply Officer, Aurangabad to give her licence of shop No. 73 being legal heir of Sukhdeo Palaskar. On 27th August, 2005, the District Supply Officer, Aurangabad issued letter to the Distribution Officer to take action on the application given by respondent No. 1 on 9th June, 2005. The District Supply Officer, Aurangabad, refused to allot the kerosene quota to the petitioner 6 society, and therefore, the revision was filed before the State Government by the petitioner. Though the order dated 18th August, 2004, was passed by the State Government giving shops No. 73, 77 & 78 to the petitioner society, but as the quota of kerosene was not allotted the petitioner society approached to the State Government by filing revision and same was heard by State Government on 14th July, 2005 and same was reserved for orders. According to the Counsel for the petitioner, the Distribution Officer who had no authority to take decision for allotting the shop, issued notice of hearing to the respondent No. 1, directing to remain present on 28th July, 2005. The Distribution Officer without any authority in law and without any powers and without taking permission of the higher authorities, issued a letter in favour of respondent No. 1, directing to run the said fair price shop No. 73 of which the licence was with the petitioner society. On 18th August, 2005, the superior authority of the Distribution Officer, the Additional Collector issued letter to the Distribution Officer, Aurangabad, that he had no powers to issue letter 7 dated 2nd August, 2005 in favour of respondent No. 1. The learned Counsel further submitted that on 22th August, 2005, the revision filed by the petitioner society came to be allowed, thereby directing to allot the kerosene quota in favour of the petitioner society. On 6th September, 2005, the District Supply Officer, Aurangabad immediately in view of the letter issued by the Additional Collector stopped the supply of the essential commodities to the respondent No. 1. On 8th September, 2005 the District Supply Officer issued letter to the Distribution Officer referring the orders dated 18th August, 2004 and 22th August, 2005 passed by the State Government and directed to issue allocation in favour of the petitioner society. The respondent No. 1 who is original plaintiff filed Regular Civil Suit No. 635 of 2005 before Civil Judge, Senior Division, Aurangabad for perpetual injunction against shop No. 73 and declaration challenging the letters dated 6th September, 2005, 8th September, 2005 and order dated 22th August, 2005 which are mentioned here-in-above. The petitioner filed application Exh. 30 for framing preliminary issue of Jurisdiction under Section 9-A of Civil Procedure Code. The Civil Court held that Court has jurisdiction to entertain the 8 suit, and there is no express bar in the Maharashtra Scheduled Commodities (Regulations & Distribution) Order 1975. 4. The learned Counsel appearing for the petitioner submits that Maharashtra Scheduled Commodities (Regulations & Distribution) Order 1975 (Here-in-after referred as ‘said order of 1975’) has been enacted as per Section 3 of the Essential Commodities Act, 1955. Clause 3 of the Essential Commodities Act, 1955 gives powers to the authorities for issuing necessary licence /authorization for running fair price shop. Clause 24 of the said order provides the machinery to the aggrieved person, approaching the Commissioner or the State Government against the order passed by the Collector. Therefore, according to the learned counsel for the petitioner, the respondent No. 1 was having remedy to approach the State Government under clause 24 of the said order of 1975. As the machinery provided under the said order of 1975, therefore, the jurisdiction of the Civil Court is impliedly barred. The learned Counsel appearing for the petitioner invited my attention to the provisions of Section 6 of the Essential 9 Commodities Act, 1955, and submitted that as per said section the Order of 1975 is having overriding effect, and therefore, procedure provided under the said order has to be followed by the aggrieved person. The learned Counsel invited my attention to the reported Judgment in case of “Harishankar Bagla and another V/s. State of M.P., reported in AIR 1954 S.C. 465” and submitted that, it has been held that the provisions of the order made under section 3 of the Essential Commodities Act, 1955 will prevail in preference to the provisions of other laws. It has been also further held that as soon as the order comes into force that will have effect not withstanding any inconsistency therewith contained in any enactment other than this Act. It is further submitted that the said order of 1975 is created by a statute i.e. Essential Commodities Act, 1955 and it provides a machinery for the enforcement of the right giving remedy and therefore, the Civil Court’s Jurisdiction is impliedly barred. The learned Counsel in support of his contention placed reliance on the following Judgments : 1] “Raja Ram Kumar Bhargava (dead) by LRs V/s. Union of India, reported in AIR, 1988, S.C. 752” 10 and more particularly Head Note B 2] Bharat Prasad and others V/s. State of Bihar & others, reported in (2009)6, SCC, 698. 3] Music Choice India Pvt. Ltd. V/s. Phonographic Performance Ltd., reported in 2009(2), Mh.L.J.651. 4] State of A.P. V/s. Majeti Laxmi Kantha Rao(D) by L.R.s. & others, reported in AIR, 2000, SC 2220. It is further submitted that the respondent No. 1 did not have legal right to claim the principles of natural justice, as no licence or authorisation has been given in favour of respondent No. 1 by the authorities for running the fair price shop No. 73, as the licence is with the petitioner society since the year 1982, and the same has been renewed from time to time. The respondent No. 1 is claiming right to heard only on the basis of letter dated 2nd August, 2005 issued by the Distribution Officer, who has no authority to issue such letter and which has been informed by the Additional Collector immediately on 18th August, 2005, and accordingly the supply of food grains was immediately stopped on 6th September, 2009. According to the counsel for the petitioner, the 11 revision which was filed by the petitioner society before the State Government in July, 2005 and the letter issued by the Distribution Officer to the respondent No. 1 is dated 2nd August, 2005 i.e. after filing of revision and therefore, the respondent No. 1 cannot claim any right to be heard before passing order on 22nd August, 2005. The revision filed by the petitioner society was heard on 14th July, 2005 when at the relevant time there was no document in favour of respondent No. 1 to claim principles of natural justice before the State Government. The learned Counsel further submitted that the husband of respondent No. 1 was the salesman of the petitioner society, and therefore, the said shop No. 73 was given to him for running as the petitioner society went into liquidation. According to the Counsel, the State Government has passed order dated 18th August, 2004 in favour of the petitioner society allotting the said shops No. 73,77 & 78 and as the kerosene quota was not allotted to the petitioner society again revision was filed before the State Government, and the order dated 22nd August, 2005 was passed in favour of the petitioner society, thereby 12 directing to allot kerosene quota to the petitioner society. Therefore, learned Counsel for the petitioner society would submit that the principle of natural justice can be claimed by a person who had some right in his favour, at the time of filing first revision and second revision by the petitioner society before the State Government. The respondent No. 1 is claiming the right to run the business of fair price shop which can be granted under the provisions of the said order of 1975 and not by the Civil Court as will be evident from the prayers made by the respondent No. 1 in her suit. Therefore, learned Counsel appearing for the petitioner would submit that this Civil Revision Application deserves to be allowed. 5. On the other hand, learned Counsel appearing for the respondent No. 1, has invited my attention to the pleadings in the plaint and reasons recorded by the Trial Court in its impugned Judgment and order and submitted that jurisdiction of the Civil Court is not expressly barred by the said Order of 1975. There is no any specific provision in the said Order of 1975, which bars jurisdiction of the Civil Court. The learned Counsel submitted that the order passed by the 13 Minister, Food Civil Supplies, in revision is without hearing the respondent No. 1. Since, 1984 the respondent No. 1 was carrying business of fair price shop. In the year 2003, the fair price shop was transferred in the name of respondent No. 1. The order passed in the revision is behind back of the respondent No. 1, and therefore, the order which is passed without hearing to the respondent No. 1, can be very well challenged by way of filing Civil Suit and jurisdiction of the Civil Court is not barred in that case. The learned Counsel further submitted that, on 2nd August, 2005 the fair price shop was allotted to the respondent No. 1. The learned Counsel submitted that nothing has been stated in the said Order of 1975, which bars jurisdiction of the Civil Court. The learned Counsel further invited my attention to the pleadings in the plaint, annexures thereto and original record and submitted that the impugned order passed by the Civil Court is perfectly sustainable and no interference is warranted in the revisional jurisdiction by this Court. 6. The learned Counsel further submitted that the husband was carrying and conducting the business 14 of the fair price shop No. 73, who had got licence Parwana No. 06955 dated 17-08-1984, the said was renewed time to time. That, while conducting and carrying business of fair price shop NO. 73, he has expired on 16-08-2003. The District Supply Officer, Aurangabad has ordered to Food Distribution Officer, Aurangabad for making enquiry and to issue Licence. Thus, enquiry was carried, statements were recorded. Thereafter, on 02-08-2005, a authority letter cum order has issued in favour of respondent No. 1 to conduct and carry business of fair price shop NO. 73. This Hon’ble Court pleased to direct the petitioner to produce a copy of revision petition which was filed before learned Minister of Food Civil Supplies Department, Mantralaya, Mumbai. But the petitioner failed to comply of direction of this Hon’ble Court. The petitioner has made a capital that the learned Minister has issued order on 18-08-2004 in regards to fair price shops Nos. 73,77 & 78. But the said order has been challenged by the shop owner of fair price shop No. 77 by filing a R.C.S. No. 238/2002. By that order petitioner has been restrained to take shops by Ld. Civil Judge Senior Division, Aurangabad vide its order dated 04-02-2005. The said order is on record. 15 The learned Minister has passed order behind back of this respondent NO. 1 Leelabai Palaskar, which is bad in law. The said is not binding on her. 7. The learned Counsel in support of his contention placed reliance on the reported judgment, in a case of “Rajasthan S.R.T.C. & others V/s. Mohar Singh, reported in 2008 AIR SCW 3567” and submitted that order of Civil Court declaring dismissal of service of bus driver of State Transport Corporation as being passed in violation of principles of natural justice cannot be said to be without jurisdiction. In the event, it is found that the action on the part of a statute or statutory rules, the Civil Court would have the jurisdiction to give directions. The learned Counsel further placed reliance on the following reported Judgments of the Supreme Court / this Court :- 1] B. Nagabhushanam V/s. State of Karnataka, reported in 2008, AIR, SCW 3573. 2] Laxminarayan Ramdayal Gutani Vs. State of Maharashtra, reported in AIR 1983 Bombay 232 more particularly in para No. 10 of the said Judgment. 3] Rasta Peth Education Society, Pune V/s. 16 Pethkar Udhao Bhimashankar, reported in 1994, Mh.L.J. 725. 4] Madhav Kesu Khuspe V/s. Sundarabai Mugutrao Phadatare since deceased by heirs Krishna Dagdu Khuspe and others, reported in 1978, Mh.L.J. 289. The learned Counsel submitted that it cannot be countenanced that for all purposes the jurisdiction of the Civil Court is taken away. The power of the Civil Court to examine cases where the provisions of the Act have not been complied with or the Statutory Tribunal has not acted in conformity with the principles of judicial procedure or natural justice remains unaffected. The learned Counsel further placed reliance on reported Judgment of this Court, in a case of “Baburao Anant Dhage & others V/s. Jagannath Gopala Karale, reported in 1999(3), ALL MR 414” and submitted that whenever the challenge to the proceedings or the document is based on fraud, the fraud being a complicated question affecting the civil rights of the parties, it is a matter to be dealt with by the Civil Courts. Therefore, learned counsel relying on various Judgments of the Supreme Court and this Court would submit that the impugned Judgment and Order passed by the Trial Court needs no interference 17 at the hands of this Court. The learned Counsel further submitted that even clause 24 of of the said Order of 1975 contemplates hearing to the affected party. However, admittedly respondent No. 1 was not heard before passing orders, granting shop or kerosene licence in favour of the petitioner society, therefore, learned Counsel would submit that this Civil Revision Application deserves to be dismissed. 8. The learned A.G.P. appearing for the respondents /State submitted that the said Order of 1975, provides remedy to the aggrieved person, if the licence is granted or refused by virtue of provisions of said Order of 1975 and therefore, the Civil Court has no powers to entertain the suit. 9. I have heard learned Counsel appearing for the petitioner, learned Counsel appearing for the respondent No. 1 and learned A.G.P. for respondents /State at great length. I have carefully perused the pleadings in the revision, annexures thereto, impugned Judgment and order passed by the Court below, and also original record made available for perusal. At the outset it would be relevant to 18 refer Section 3 of the Essential Commodities Act, 1955 which reads thus :- “ Powers to control production, supply,distribution etc. of essential commodities - (1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair price, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may, by order, provide for regulating or prohibiting the production,supply and distribution thereof and trade and commerce therein. (2) Without prejudice to the generality of the powers conferred by sub-section (1), an order made thereunder may provide,- (a) for regulating by licence, permits or otherwise the production or manufacture of any essential commodity; (b) for brining under cultivation any waste or arable land, whether appurtenant to building or not, for the growing thereon of food- crops generally or of specified food-crops, and for otherwise, maintaining or increasing the cultivation of food-crops 19 generally, or of specified food- crops; (c) for controlling the price at which essential commodity may be brought or sold; (d) for regulating by licence, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of, any essential commodity; (e) for prohibiting the withholding from sale of any essential commodity ; [(f) for requiring any 0person holding in stock, or engaged in the production, or in the business of buying or selling, of any essential commodity,- (a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or (b) in the case of any such commodity which is likely to be produced or received by him to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such 20 Government or to such other person or class of persons and in such circumstances as may be specified in the order.” The Maharashtra Scheduled Commodities (Regulation of Distribution) Order, 1975 issued by the Food and Civil Supplies Department, Sachivalaya Annexe, Bombay. The opening portion of the said order reads thus :- “ No.ECA-2875/2598/II- in exercise of the powers conferred by sub section (1), read with clauses (c), (d), (e), (f), (i), (ii) of sub section (2) of Section 3 of the Essential Commodities Act, 1955 (x of 1955), and of all other powers enabling the Government of Maharashtra in this behalf, read with the order of the Government of India, Ministry of Agriculture (Department of Food), No. GSR, 316(E), dated the 20th June 1972 and the orders of the Government of India, Ministry of Industry and Civil Supplies (Department of Civil Supplies and Co-operation) No. S.O. 681 (E) and S.O. 682(E), dated the 30th November, 1974 and with the prior concurrence of the Central Government, the Government of Maharashtra hereby makes the following order, namely :- 21 1. Short title, extent and commencement – (1) This order may be called the Maharashtra Scheduled Commodities (Regulation of Distribution) Order, 1975. (2) It extends to the whole of the State of Maharashtra excluding the Rationing Area. (3) It shall come into force on the 1st day of October 1975.” Bare perusal of the afore mentioned extract from the order would demonstrate that the said order is passed in exercise of the powers conferred by sub section (1) read with clauses (c), (d), (e), (f), (h), (i) (ii) and (j) of sub section (2) of Section 3 of the Essential Commodities Act, 1955 (X of 1955). U/clause 2 of the said order, definitions of “authorised agent” “authorised establishment”, “Collector”,“Commissioner”,“dealer”,“establishment”,“e stablishment consumption”,”fair price shop”,”household consumption”,”levy sugar”,”rationing area”,”supply slip”,”supply card”, “supply document” and “scheduled” are given. Perusal of clause 2 makes it clear that the authorities Collector, and State Government is empowered under the said order of 1975 to issue licence, and issue card etc., and further to keep 22 control over the licence and shops allotted under this Order of 1975. In clause No. 2 (f) the fair price price shop is defined. The fair price shop means person in- charge of the shop authorised under the provisions of clause, and includes a person in-charge of a shop where scheduled commodities are sold and is under the control of Government. Therefore, it is clear that the licenses are granted to run the fair price shop under the provisions of said Order of 1975. Clause 3 of the said order of 1975 reads thus :- “”issue of authorisation to fair price shops and agents to obtain and supply scheduled commodities”.-- (1) With a view to controlling the distribution of scheduled commodities, the State Government or the Collector may issue an authorisation to any person for being a fair price shop or