(1) WP 7439.2011+group IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7439 OF 2011 M/s Bhagwati Enterprises and ors. PETITIONERS VERSUS The State of Maharashtra and ors. RESPONDENTS WITH WRIT PETITION NO.7482 OF 2011 Harakchand Suklal Jain and ors. PETITIONERS VERSUS The State of Maharashtra and ors. RESPONDENTS WITH WRIT PETITION NO.7407 OF 2011 Pramod Laxman Salunke and ors. PETITIONERS VERSUS The State of Maharashtra and ors. RESPONDENTS WITH WRIT PETITION NO.7402 OF 2011 Harischandra Baburao Wagh and ors. PETITIONERS VERSUS The State of Maharashtra and ors. RESPONDENTS WITH WRIT PETITION NO.7483 OF 2011 Ashok Amrut Gaikwad and ors. PETITIONERS VERSUS The State of Maharashtra and ors. RESPONDENTS WITH WRIT PETITION NO.7484 OF 2011 Chandrakant Laxman Karankal and ors. PETITIONERS VERSUS The State of Maharashtra and ors. RESPONDENTS WITH WRIT PETITION NO.8001 OF 2011 M/s Vasudeo Enterprises through its proprietor and ors. PETITIONERS VERSUS The State of Maharashtra and ors. RESPONDENTS (2) WP 7439.2011+group ..... Advocate for the Petitioners Mr. R.N. Dhorde, Advocate h/f. Mr. V.R. Dhorde, Advocate (WP 7439 of 2011) Mr. S.P. Shah, Advocate h/f. Mr. A.N. Sabnis, Advocate (WP 7482 of 2011) Mr. V.D. Sapkal, Advocate (WP 7407 of 2011) Mr. C.R. Deshpande, Advocate (WP 7402 of 2011) Mr. N.L. Choudhari, Advocate (WP 7483 of 2011) Mr. G.S. Rane, Advocate (WP 7484 of 2011) Mr. D.S. Bagul, Advocate (WP 8001 of 2011) Advocate for the Respondents Mr. A.S. Sawant, Advocate for respondent no.5 (WP 7439.2011) A.G.P. for the Respondent-State Mr. V.D. Rakh, A.G.P. for the Respondent-State. ..... CORAM : B.R. GAVAI AND M.T. JOSHI, JJ. DATED : 15TH DECEMBER, 2011 ORAL ORDER: 1. Since identical matters are on Board, production of Writ Petition no.8001 of 2011 is permitted. 2. Rule. Rule made returnable forthwith. Heard finally, by consent of the parties. 3. By way of present Petition, the petitioners have challenged the communication dated 07.09.2011 issued by the respondent no.2, thereby directing the Wholesale Dealers/Company agents to distribute 50% of (3) WP 7439.2011+group the kerosene quota allotted to the petitioners directly to the retailers. It is the basic contention of the petitioners that the said communication is contrary to the policy laid down by the State Government vide communication dated 28.06.2004. 4. Shri Dhorde, learned counsel and other counsel appearing on behalf of the petitioners submits that as per the communication dated 28.06.2004, which is issued by the State Government, the quota of the semi-wholesalers cannot be reduced. It is further submitted that the respondent no.5 in Writ Petition no.7439 of 2011 has only singled out Dhule Tahsil, by departing from the procedure prescribed in the said communication dated 28.06.2004. It is submitted that even in other Tahsils of Dhule Taluka, the policy as laid down in communication dated 28.06.2004 is being implemented. 5. In the affidavit in reply filed on behalf of the respondent nos. 2 and 3, it has been contended that the semi-wholesalers are refusing to transport kerosene at the doorstep of retailers despite being paid for that and that they are also diverting (4) WP 7439.2011+group kerosene for adulteration by refusing to issue kerosene as per authorization. It is further submitted that in order to effectively implement the Dwar Pohanch Vitaran Scheme, 50% of the quota of the semi- wholesalers is being diverted for distribution of the same to the retailers directly. 6. It appears that, there has been earlier round of litigation challenging the said Dwar Pohanch Vitaran Scheme by way of Writ Petition no.2505 of 1988 alongwith the other Petitions. The Petitions have been disposed by a Division Bench of this Court vide order dated 19.09.1998. While disposing of these Petitions, this Court has observed thus:- "7. On instructions, we have been assured by the Special Counsel for the State Govt. that as far as possible, efforts would be made to see that the quota of kerosene formerly at the disposal of the wholesale or semiwholesale dealers will be maintained. We hope that this assurance would be followed, subject to the limitation which may be there and which are beyond the control of the State Govt." 7. It appears that the communication dated 28.06.2004 has been issued by the State Government on the basis of the orders passed by this Court dated (5) WP 7439.2011+group 19.06.1998. Perusal of sub-clause (1) and (8) of clause 2 thereof would read thus:- "2. ek- mPp U;k;ky;kus ojhy fu.kZ;kUo;s fnysys funsZ'k fopkjkr ?ksmu loZ ftYg;kr iq<hy izek.ks dk;Zokgh Ogko;kl goh gksrh- (1) l|fLFkrhr dk;Zjr vlysys ?kkmd rsy daiuh}kjk fu;qDr ,t.V o v/kZ ?kkmd forjd ;kapk dksVk dk;e Bso.ks] Eg.ktsp }kjikspP;k dkj.kkLro R;ke/;s cny u dj.ks- (8) }kjiksp forj.k djko;kP;k dkj.kklkBh l/;k dk;Zjr vlysY;k forj.k O;oLÉse/;s cny d: u;s Eg.kts rsy daiuh}kjk fu;qDr ,t.Vkapk dksVk dk<wu v/kZ?kkmdkyk ok v/kZ?kkmdpk dksVk dk<wu vf/kd`r ,t.Vkyk ns.ks-" . It can thus clearly be seen that the State Government itself has decided while implementing the Dwar Pohanch Vitaran Scheme that the quota of the existing wholesalers and semi-wholesale dealers appointed by the Company should not be reduced. Sub- Clause (8) specifically clarifies that it will not be permissible for withdrawing the quota from semi- wholesalers and giving it to someone else. No doubt, prima facie, we find that the intention behind the impugned letter cannot be said to be malafide. It appears that the impugned communications are issued with a bonafide intention that the Dwar Pohanch Vitaran scheme should be properly implemented. However, the Tahsildar, who is an Officer subordinate to the State Government, cannot be permitted to act (6) WP 7439.2011+group contrary to the policy laid down by the Government. In any case, clause (3) of the said communication itself provides that the authorities should make necessary provisions for supervision of Dwar Pohanch Vitaran Scheme by the semiwholesale. In the event, the semi-wholesalers do not comply with the directions of transporting the kerosene to the retailers, as per the Government policy, the Authorities are not helpless. They are empowered to take necessary action in accordance with law. In any case, as already observed herein-above, when the State Government has formulated a particular policy, no authority subordinate to it has the power to deviate from the same. The impugned communication is patently in deviation of the policy as laid down in the communication dated 28.06.2004. 8. In that view of the matter, we are inclined to allow all the Writ Petitions. The impugned communications are quashed and set aside. We however make it clear that in the event if the respondents find any difficulties in implementing earlier communication dated 28.06.2004, the recourse that will be available to them would be to approach the State (7) WP 7439.2011+group Government for change in the policy. We make it clear that in the event the State Government proposes to make changes in their policy, the orders passed by this Court in the present Writ Petitions would not come in their way. However, at the same time, needless to state that the Government would be bound to take into consideration the earlier judgment passed by this Court. Rule is therefore made absolute in the above terms. Sd/- Sd/- [M. T. JOSHI, J.] [B. R. GAVAI, J.] arp/