1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 2019 OF 2010 (Vijay D. Bankinwar vs. The State of Maharashtra & Ors.) and WRIT PETITION NO. 2020 OF 2010 (Sheikh Nannu s/o Sk. Moinuddin vs. The State of Maharashtra & Ors.) and WRIT PETITION NO. 2021 OF 2010 (Shankar K. Jadhav vs. The State of Maharashtra & Ors.) and WRIT PETITION NO. 2022 OF 2010 (Mohammad Hasan s/o Sk. Jafar vs. The State of Maharashtra & Ors.) with WRIT PETITION NO. 2023 OF 2010 (Sau. Jaishree V. Jadhav vs. The State of Maharashtra & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. JULY 29, 2010. The matters are part heard as notice issued is for final disposal. Shri Mirza, learned counsel for the petitioners has stated that reply filed by the petitioners to Show cause notice was totally lost sight of by Respondent No. 3 – District Supply Officer and its contents are not considered either by the appellate authority or by the Hon'ble Minister. The authorities have avoided due consideration only because of pendency of some criminal prosecution against the petitioners and the report of the Commissioner, Nagpur Division, Nagpur, in the matter. According to him, since 2006 till date, no charge sheet is filed against any of the petitioners. He has invited attention to earlier orders 2 passed by this Court on 11.02.2008 in Writ Petition No. 83 of 2008. His contention is because the orders dated 07.09.2007, passed by Respondent No. 3 in those matters, were found to be passed without considering the replies, the orders were quashed and set aside. He points out that the impugned order of Respondent No. 3 in present matters is identical and of the same date but these petitioners challenged those orders in appeal and thereafter in revision and then they approached this Court. He has also invited attention to earlier judgment dated 03.10.2008 delivered by me in Writ Petition No. 3648 of 2008 wherein the matter was required to be remanded back because the appellate authority or revisional authority did not peruse original records and wrongly placed the burden to prove that there was no misappropriation or mal-practices upon the licensee. S/Shri Jaiswal, Sonare, Patel and Mrs. Wasnik, learned Assistant Government Pleaders in respective writ petitions, on the other hand, point out that though Respondent No. 3 has not considered that reply, in appeal the reply has been noticed and because of serious illegalities noticed by the Divisional Commissioner and registration of offence under Sections 420, 467, 468, 471 and 472 read with Section 34 of Indian Penal Code at Police Station Mahagaon, against the petitioners, the action has been taken. They contend that the stand taken by the petitioners in their respective reply is incorrect. They further point out that after the 3 impugned order dated 07.09.2007, the shop of the petitioners is closed. In the light of earlier judgment of this Court dated 11.02.2008 in Writ Petition No. 83 of 2008 and dated 03.10.2008 in Writ Petition No. 3648 of 2008, it is apparent that the orders are unsustainable. Merely because in inspection report, the office of the Divisional Commissioner has made certain observations, that by itself is not sufficient to cancel the license. On the basis of those observations, Show-cause notice was given to present petitioners on 31.08.2007. The cause shown by the petitioners needed to be appropriately evaluated and if the report of Divisional Commissioner is treated as final and binding, there is no need of serving such show cause notice. In reply to show cause notice, the petitioners have stated that they were not aware about the period for which the records are required to be preserved and in one of the case, the records are destroyed and in other case, stand is the records were handed over to visiting team of the office of the Divisional Commissioner and the petitioners produced acknowledgments issued by that office. The contentions, therefore, needed to be looked into to find out whether the records were with the petitioners or then with the office of the Divisional Commissioner or then were destroyed. All these factors which may have material impact are not looked into. Though the appellate authority mentions that 4 the reply has been filed by the petitioners, the contents of that reply are not even looked into and no finding about the defence raised is recorded. The lower authority i.e. Respondent No. 3 had recorded that no such reply was filed. The perusal of order passed by the Hon'ble Minister again shows that only because of the visit by the Divisional Commissioner, in pursuance of orders of this Court, the orders passed by lower authorities have been maintained. Again the merits of the contentions and defence raised by the petitioners are not looked into. In this situation, I find that the impugned orders are unsustainable. With the result, the order dated 23.03.2008 passed by Respondent No.1, orders dated 04.12.2007 passed by Respondent No. 2 and orders dated 07.09.2007 passed by Respondent No. 3 are set aside. However, looking to the nature of charges, it is made clear that the petitioners are not permitted and shall not use their license or open their shops till the issue is decided by Respondent No. 3 after giving them necessary opportunity. Respondent No. 3 shall consider the replies filed by the respective petitioners, shall give them opportunity of hearing and shall pass fresh orders in the matters as early as possible and in any case by 30th September 2010. The petitioners shall appear before Respondent No. 3 on 10.08.2010 and shall abide by his further directions in the matter. 5 Writ Petitions are disposed of. Rule is made absolute accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs. JUDGE *GS.