-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4668 OF 2006 WRIT PETITION NO.4668 OF 2006 WRIT PETITION NO.4668 OF 2006 Smt.Urmila Hukumchand Bhalani, .. Petitioner. Vs The Minister for Food, Civil Supplies & Consumer Protection and ors. .. Respondents. Mr S.G.Kudle, for the petitioner. Mr A.H.Palekar, AGP for the respondents. CORAM : D.B.Bhosale,J. CORAM : D.B.Bhosale,J. CORAM : D.B.Bhosale,J. DATE : 05.03.08. DATE : 05.03.08. DATE : 05.03.08. PC: PC: PC: 1. Heard Mr.Kudale, learned counsel for the petitioner and Mr.Palekar, learned AGP for the respondents. . Rule. Mr.Palekar, learned AGP, waives service for the respondents. By consent, rule is made returnable forthwith and heard finally. I have heard learned counsel for the parties at considerable length. 2. The instant writ petition was placed before this Court on 3.3.2008 for admission. At that stage, learned counsel for the petitioner, at the outset, invited my attention to the order passed by this Court on 19.12.2006 in the three writ petitions, bearing nos. 6547/06, 3945/06 and 3860/06 and submitted that the orders impugned in the present writ petition so also in -2- those writ petitions are identical and since all those writ petitions have already been admitted, this writ petition also deserves admission. However, I adjourned the petition at the request of learned AGP, since the AGP who was to appear in the petition was not present. I also made it clear to the learned counsel for the petitioner that I would like to consider the instant petition independently on merits and I may dispose of the same at the stage of admission. 3. From perusal of the order dated 19.12.2006, it appears that a similar prayer was made before the learned Single Judge, stating that the order dated 1.3.2006, in writ petition no.410 of 2006 was also passed in identical fact situation and in view thereof the learned Single Judge seems to have had issued rule in all the three writ petitions. The order dated 19.12.2006 reads thus: "1. Perused the order passed by the learned Single Judge dated 1.3.2006 in Writ Petition No.410 of 2006. The learned counsel for the petitioner submits that the said order has been passed in identical fact situation. Having regard to the nature of controversy, I pass the following order: 2. Issue rule, returnable in 12 weeks. Till then, ad-interim relief in terms of prayer clause -3- (d) and (e)." 4. The ad-interim relief was thereafter confirmed by the another learned Single Judge on 20.4.2007. It reveals from the record that when the ad-interim relief was confirmed by the learned Single Judge, the State had not filed their reply affidavit on record. However, reply affidavit of Shri Vikrant Chavan, Tahsildar, in writ petition no.3945 of 2006 dated 21.4.2007 was placed on record thereafter. Since all these writ petitions are tagged with the instant writ petition, I could glance through all the papers including the affidavit dated 21.4.2007. In paragraph 3 of that affidavit, a reference to Letters Patent Appeal No.246 of 2006 in Writ Petition No.3916 of 2006 was made. When I enquired with the learned counsel for the petitioner, he informed that in all these writ petitions including writ petition no.3916 of 2006 and the instant writ petition, the initial orders issued by the Tahsildar in favour of the petitioners, temporarily allowing them to distribute kerosene quota, are identical which were subsequently cancelled by following the due process of law, namely, issuing show cause notice to them all. Those orders are the subject matters of all these writ petitions. When I asked Mr Kudale specifically whether the order passed by the learned Single Judge in Writ Petition No.3916 of -4- 2006 dated 22.8.2006 was brought to the notice of the learned Single Judge who admitted the Writ petition nos. 6547, 3945 and 3860/06 on 19.12.2006, he submitted that "he did not feel it necessary" to bring it to the notice of the learned Single Judge who issued rule in all these writ petitions. There is no dispute that the orders in the instant writ petitions and in writ petition no.3916 of 2006 are also similar. 5. Courts usually accept and act on the statements made by learned counsel for the parties across the Bar. However, the past experience, sometimes make courts to look into papers in order to verify the correctness of the statements, as I did in the present case. The Advocates are expected to be fair to the Court and are not supposed to suppress the material facts or events from the court with a view to snatch orders in favour of their clients. Had I accepted the statement made by Mr Kudale, learned Advocate for the petitioner, perhaps I also would have admitted the petition and granted interim relief, as prayed in the writ petition which deserves to be dismissed. I now proceed to record the reasons for dismissing the petition. 6. Mr Palekar, learned AGP placed on record the order dated 22.8.2006 in Writ Petition No.3916 of 2006, -5- which reads thus: "2. By this writ petition, the petitioner has challenged the orders passed by the authorities below including the order of the Minister for Food, Civil Supplies and Consumer Protection, directing to discontinue kerosene quota being supplied to the petitioner. On 8.8.1994, the petitioner was granted kerosene quota on temporary basis taking into consideration the then existing strength of the ration cards attached to kerosene distributor at Kurduwadi. The order made it very clear that the kerosene quota was granted on temporary basis. On 31.12.1997, the Tahasildar, Madha had issued a letter making reference to the order dated 8.8.1994, stating that the petitioner had not obtained the kerosene licence as required under the Kerosene Licensing Order, 1966 and further stated that the petitioner should apply forthwith for such licence. It was also made clear that no kerosene quota would be released until such licence is obtained by the petitioner. Since then till this date the petitioner has been litigating for getting the kerosene quota restored before different authorities on the basis of the order dated 8.8.1994, without holding a valid licence under the Kerosene Licensing Order, 1966. Mr Kudle, submitted that the petitioner had applied for the licence in January, 1997 but his application has not been decided till this date. Mr Kudle, however, failed to produce a copy of his application before me. He invited my attention to some challans, which show that the licence fee was paid by the petitioner in 2002. Admittedly, no such licence has ever been issued to the petitioner. Mr Kudle, learned counsel for the petitioner, placed reliance on the judgment of the Supreme Court in M/s Motilal Padampat Sugar Mills Co ltd Vs. State of Uttar Pradesh and ors, (1979) 2 Supreme Court Cases 409, to contend that under any circumstances after having supplied kerosene quota to the petitioner for several years the Government cannot now withdraw the kerosene quota. In my opinion, merely because -6- the Government continued the supply of kerosene quota to the petitioner that, by itself, will not entitle him to such quota without obtaining a licence as required under the Kerosene Licensing Order,1966. It appears that the quota was continued by virtue of the orders passed by different authorities at different stages in these proceedings. The judgment relied upon is of no avail to the petitioner in view of the peculiar facts and circumstances of this case. Considering that there are concurrent findings recorded by authorities below and as I find that there is sufficient material on record to sustain those findings and considering the extremely limited jurisdiction of this Court under Article 227 of the Constitution of India, the present writ petition cannot be entertained. In the circumstances, this petition deserves to be dismissed. Order accordingly. The dismissal of the petition, however, shall not come in the way of the petitioner for applying afresh to the concerned authority for kerosene licence and if the petitioner has already filed such application, as stated by Mr Kudle, same may be considered on merits in accordance with law as expeditiously as possible and preferably within a period of three months from the date of production of this order before the concerned authority. However, the petitioner will have to satisfy the concerned authority of having filed such an application earlier." This order was challenged in Letters Patent Appeal No.246 OF 2006 by the petitioner in the said writ petition and the Division Bench, by order dated 26.3.2007, dismissed the LPA by following order. "Heard Mr S.G.Kudale at length. The order -7- passed by the Single Judge of this Court on 22nd August, 2006 in Writ Petition No.3916of 2006 is under challenge. It appears that in 1994 when the kerosene licenses were granted, licence was not granted to the petitioner and the petitioner, therefore, gave a notice of hunger strike. Taking cognizance of that, some temporary arrangement was made by the Tahsildar on the basis of telephonic message of the Collector, who was equally instructed by the Minister in this respect. However, lateron, the petitioner was directed to obtain a valid licence as per law. It appears that such licence was not obtained and, therefore, the quota which was temporarily granted has been withdrawn by the Tahsildar. The said order was challenged before the superior officers and ultimately before the State of Maharashtra which was confirmed. That was challenged before the Single Judge. The Single Judge also rejected the petition and, therefore, this LPA. 2. It is to be noted that it is a fact on record that the petitioner, though was granted temporary quota, that was not on the basis of any valid licence and he was supposed to obtain the valid licence which he has not obtained till today and, therefore, what we find is that the Single Judge is right in observing that unless the valid licence is obtained, the petitioner is not entitled to carry out sale or business of a scheduled commodity like kerosene. 3. We do not find any reason to interfere with the Single Judge’s order. LPA is hereby rejected." Though Mr Kudale could not and did not point out any difference between the two cases, vehemently submitted that in view of the Supreme Court Judgment, which was not brought to the notice of the learned Single Judge and the Division Bench which dealt with the writ -8- petition and the LPA, this petition deserves to be allowed. He invited my attention to the judgment of the Supreme Court in Murarilal Jhunjhunwala Vs. State of Murarilal Jhunjhunwala Vs. State of Murarilal Jhunjhunwala Vs. State of Bihar and ors, AIR 1991 SC 515 Bihar and ors, AIR 1991 SC 515 Bihar and ors, AIR 1991 SC 515. I perused the judgment wherein the Supreme Court was dealing with the provisions of Bihar Trade Articles (Licences Unification) Order, 1984. In that case, admittedly the licence was granted to the appellant for a period of one year and thereafter the appellant had applied for a licence in subsequent years and also deposited the fees and carried on business under the banafide belief that he would be granted licence. The licensing authority in that case neither rejected the application nor pointed out any defect and they prosecuted the dealer for not obtaining the licence. Against this backdrop, the Supreme Court in paras 5 and 6 of the judgment observed thus : "5. Technically, the authorities may be justified in prosecuting the appellant for carrying on the business without obtaining the licence. But the facts of the case reveal that the appellant is not to be blamed. If there is anybody to be blamed in this case it is only the Licensing Authority who has failed to perform its statutory duties. The appellant has done all that he could do under the law. He has not been told at any time that he is required to do anything more than what he has already done. For successive four -9- years the Licensing Authority went on accepting the application for licence with the necessary licence fees, and at no time it denied the claims of the appellant. Its silence seems to demonstrate the total lack of awareness to the rights of the appellant. To cover up its own inaction and lethargic attitude, it seems to have directed the prosecution of the appellant. The attitude of the Licensing Authority is beyond our compensation. It is arbitrary on the fact of it and unjustified on every aspect of it. We fail to understand why the appellant should prosecute when he on his part has done everything for obtaining the Licence. The appellant was legitimately entitled to the licence which has been unreasonably withheld from him. It wold be indeed wrong on the part of the Licensing Authority to prosecute the appellant. 6. In the circumstances of the case, we allow the appeal, set aside the order of the High Court and quash the proceeding against the appellant pending in the Court of SM and Collector, Giridh in Misc. Case No.3/88. We further direct that the appellant be granted license forthwith for which he has already applied according to law." 7. In our case, admittedly at no point of time the licence was granted in favour of the petitioner nor did he ever applied for licence. Mr Kudale, however submitted that acceptance of renewal fees, in the present case, by the authorities amounts to grant of licence. In other words, he submitted that licence deemed to have been granted in view of the fact that the authorities made the petitioner to pay renewal fees. He then submitted that the petitioner is allowed by virtue -10- of Tahsildar’s order dated 28.3.1995 to distribute kerosene quota till this date. He then submitted that the earlier order of the Tahsildar cancelling the petitioner’s quota was also subsequently set aside by the SDO vide order dated 17.10.1996 and, therefore, such continuation of distribution of kerosene quota, under any circumstances, cannot be cancelled and the petitioner is entitled to distribute kerosene indefinitely even if she does not hold licence as long as she does not commit any illegality. 8. It is not possible to accept such submission in view of the fact that admittedly in the present case no licence, as required for distribution of kerosene under the Maharashtra Kerosene Dealers’ Licensing Order, 1966, was ever granted in favour of the petitioner. Moreover, merely because, as submitted by Mr Kudale, the SDO vide order dated 17.10.1996, directed the Tahsildar to continue distribution of kerosene quota of the appellant as usual, that would not confer any right on the petitioner to continue distribution of kerosene quota indefinitely. It is clear that the SDO, while issuing such direction did not verify whether the licence was ever issued to the petitioner. Merely because the petitioner was made to pay renewal fees does mean that the authorities, even after having noticed that the -11- petitioner does not hold licence, cannot initiate action to cancel the order dated 28.3.1995, which was admittedly granted temporarily. Errors committed by the authorities, as in this case, if are not allowed to be corrected even by following the due process of law, that would amount to regularising the illegality. In other words, the petitioner will have to be allowed to continue to distribute kerosene quota without licence which, in my opinion, cannot be allowed. 9. It may be noticed that the instant petition arises from the proceedings which were initiated by the concerned authority by issuing the show cause notice dated 29.5.2005 to the petitioner to show cause why supply of kerosene quota be not cancelled. There is no dispute that the petitioner was given sufficient opportunity by all the concerned authorities which subsequently passed orders in the appeal and the revision. Before none of the authorities the petitioner could satisfy that she holds valid licence for distribution of kerosene quota. It is against this backdrop, it would not be possible to allow such petitioner to continue to distribute kerosene quota without licence. The Supreme Court Judgement in Murarilal Jhunjhunwala case Murarilal Jhunjhunwala case Murarilal Jhunjhunwala case (supra), in my opinion, in view of the peculiar facts and circumstances of the -12- case, is of no avail to the petitioner. The question involved in this petition is altogether different than the one fell for the consideration of the Supreme Court. Taking overall view of the matter and for the reasons recorded in the orders passed in writ petition no.3916 of 2006 and by the Division Bench in LPA, this writ petition deserves to be dismissed with costs. Order accordingly. Dismissal of this petition, however, shall not preclude the petitioner from applying for licence and if she makes such application same may be considered in accordance with law. 10. Since the other writ petitions were not listed for hearing, it is open for the learned AGP to take appropriate steps to get other writ petitions bearing nos 6547, 3945, 3860 and 410 of 2006 listed before the court seeking vacation of the interim reliefs and/or seeking final hearing of those writ petitions. . Request made by Mr Kudale for stay of the operation of this order for four weeks is rejected. (D.B.Bhosale,J.) (D.B.Bhosale,J.) (D.B.Bhosale,J.) -13-