1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.: 8435 OF 2009 Prakash S/o Gabba Rathod, Age: 45 years, Occu.: Business, R/o Gokunda, Tq. Kinwat, Dist. Nanded. ... PETITIONER VERSUS 1. The State of Maharashtra, Through The Secretary, Department of Foods & Supply, Mantralaya, Mumbai). (Copy to be served through Government Pleader, High Court of Judicature of Bombay, Bench at Aurangabad). 2. The District Supply Officer, Nanded, District Nanded. 3. The Deputy Commissioner (Supply), Aurangabad Division, Office o Divisional Commissioner, Delhi Gate, Aurangabad. 4. Mohammad Latiphoddin Mohammad Bashiruddin, Age: 40 years, Occu.: Business, R/o Gokunda, Tq. Kinwat, Dist. Nanded. ... RESPONDENTS *** Mr. S. N. Vibhute, Advocate for the Petitioner. Shri S. N. Kendra, A.G.P. for the Respondent/ State authorities. Mr. A. S. Deshpande, Advocate for Respondent No.4. *** 2 CORAM: S. B. DESHMUKH J. DATED:- 25th JANUARY, 2010. ORAL ORDER : JUDGMENT: 1. Heard learned counsel for the parties. This petition, under Articles 226 and 277 of the Constitution of India, challenges the quasi-judicial order passed by the learned Minister, Food & Civil Supplies and Consumer Protection Department dated 14th October, 2009. 2. Rule. Made returnable forthwith. Heard finally by consent of the parties. 3. The petitioner seeks quashment of the order passed by the learned Minister of Respondent No.1. It is not in dispute that before the learned Minister it was a proceeding challenging the order passed by learned Deputy Commissioner (Supply) dated 23rd June, 2003 and the order passed by the Sub Divisional Officer, Kinwat dated 5th August, 2000. It reflects from the body of the order passed by the learned Minister that the Fair Price Shop run by Respondent No.4 at Gokunda, Taluka Kinwat, district Nanded was inspected by the competent authorities. Respondent No.4 was penalised with fine of Rs. 3 10,000/-. His security money was forfeited. An amount of Rs.80,675/- towards alleged misappropriation of food grains, which are detailed in the order, was also directed to be recovered from the Respondent No.4, however, warning in writing, was directed to be given to Respondent No.4 that such incident shall not be repeated in future. The learned Minister heard the Respondent No.4 and passed an order on 14th October, 2009. It was Revision application filed by the Respondent No.4. The present petitioner was not party before the learned Minister. There were five charges leveled against the Respondent No.4. These five charges have been listed by the learned Member, in para 5 of the order. Charge No.1 pertains to non-display of the stock of the food grains available at the fair price shop run by the Respondent No.4 and non- displaying the board showing rates of various food grains sold at the said fair price shop. Charge No.2 levelled against the Respondent NO.4 was lack of samples from the said shop run by the Respondent No.4. Charge NO.3 pertains to non-maintenance of record of 4 ration cards attached to the said shop NO.150 at the relevant time, run by the Respondent No.4. Charge No.4 was non-mentioning of date on the receipt which were given to the card holders. In para 7 of the order, learned Minister observed that record made available before him makes it clear that the Respondent No.4 was holding authorisation for running a fair pric3e shop. It appears from para 6 and 7 that complaints were received in relation to shop run by Respondent No.4 at the relevant time. Acting on these complaints, inspection of the shop, run by Respondent No.4, was carried by the competent authority. The charges which were levelled against the Respondent No.4 were found substantially true, by the authority concerned. The Sub Divisional Officer, kinwat cancelled the authorisation of the Respondent No.4's fair price shop No.150. It is further mentioned, in this para 7, that the Respondent NO.4 partly admitted charges Nos.1 to 5 made against him. So far charge No.6 is concerned, it is mentioned that there was no evidence led and only it is stated by the Respondent NO.4 5 that he did not misappropriate the food grains. Learned Minister, however, observed that running fair price shop was the only means of sustenance for Respondent No.4 at the relevant time. Considering the material on record, learned Minister imposed fine of Rs. 10,000/- to the Respondent No.4; directed forfeiture of entire earnest money deposited by Respondent No.4 with the State Government. Since misappropriation of the food grains was established, learned Minister recorded the quantity of misappropriation of sugar around 580 Kgs. X Rs.20/- levy at the relevant time, which comes to Rs.11,600/- alleged misappropriation of wheat 240 Kgs., rice etc. The learned Minister recorded a finding that it is a case of misappropriation of various food grains as detailed by him to the tune of Rs.80,675/-. With this finding, learned Minister allowed the Revision Application filed by Respondent No.4 partly. The order passed by learned Sub Divisional Officer, Kinwat and Deputy Commissioner, Aurangabad dated 5th August, 2000 and 23rd June, 2003 are quashed and set aside. Earnest money 6 deposited by Respondent No.4 has been forfeited. Rs.10,000/- is the fine imposed on the Respondent NO.4. Authorization, which was cancelled by the subordinate authorities has been quashed and set aside by the learned Minister and restored with the Respondent No.4. Respondent No.4 is also directed to deposited Rs.80,675/0 towards misappropriation amount of the food grains detailed in the order. Further direction is given that warning in writing to be given to the Respondent No.4. It has been further directed that on depositing the fine amount and misappropriation amount, and after submission of copy of challan, further action of restoration should be carried out immediately. This was the order passed by the learned Minister on 14th October, 2009. 4. Counsel appearing for the Petitioner submits that order impugned is per-se illegal. According to him, order passed by the Sub Divisional Officer, Kinwat district Nanded dated 23rd June, 2003 was challenged before the learned Minister, after about nine years. There was no application for condonation of 7 delay. In the absence of application for condonation of delay, Revision Application was entertained illegally and partly allowed. His second ground is that section 24 obligates hearing of aggrieved person i.e. in the case on hand, he was not heard. He, therefore, submits that the order impugned is perverse and be quashed and set aside. He also submits that, if Respondent No.4 choses to file Revision Application with application for condonation of delay, same may be considered and after hearing the present Petitioner, learned Minister may pass appropriate order. 5. Learned A.G.P., on behalf of the State, points out affidavit which is on record. This affidavit is sworn in by one Mr. Sharad Zadke, working as Additional District Supply Officer at the relevant time. This affidavit seems to have been sworn by the person concerned on 16th January, 2010. This affidavit makes mention that this discretionary order is passed by the learned Minister, therefore, there is no question of setting aside the order. Learned A.G.P. supports the order passed by the learned Minister. 8 6. Mr. Deshmukh for the Respondent No.4, at the out set, submits that the present petitioner has no locus standi. He was not party before the learned Minister. This writ petition itself, therefore, is not maintainable. He also points out that in view of the order passed by the learned Minister on 14th October, 2009, Respondent No.4 has deposited Rs.10,000/-, fine amount imposed by the Revisional Authority on 16th November, 2009. He also points out amount of alleged misappropriation of the food grains to the tune of Rs.50,735/- is also deposited by Respondent no.4 on 16th November, 2009. Copy of the challan is annexed with the affidavit. 7. So far issue of locus of the present Petitioner is concerned, counsel for the Petitioner invites my attention to para 3 of the petition. In this para 3, a statement is made that the present Petitioner is in possession of authorization of fair price shop No.29 at village Shaniwarpeth , Taluka Kinwat, district Nanded. Licence was granted by the competent authority on 4th August, 1995 and renewed from time to time. He also made a 9 statement in para 4 that at Gokunda, Taluka Kinwat, district Nanded Respondent No.4 was running the fair price shop. However, there were several complaints. Fair price shop run by the Respondent No.4 was inspected/ searched, illegalities were found. The Sub Divisional Officer, Kinwat passed an order on 5th August, 2000 canceling the authorization of Respondent Nos.4's fair price shop No.150 and cards attached to that shop were bifurcated and attached to shop run by one Mr. Ganpat Ramayya Perkalwar. Said Perkalwar, according to the petitioner, on account of his personal difficulties, refused to run the fair price shop i.e. the cards of shop No.150 offered to him, therefore, those cards were additionally and by way of alternate arrangement, attached to the shop of the present petitioner by the order dated 12th October, 2006. He also points out resolution of the Gram Sabha of village Gokunde dated 2nd October, 2006. 8. The Maharashtra Scheduled Commodities (Regulation of Distribution) Order, 1975 [hereinafter referred to as the Order of 1975, 10 for short] has been issued by the Food and Civil Supplies Department, corrected up to 31st March, 1995. Said Order of 1975 is available in compendium of statutory orders relating to food stuffs, sugar, kerosene and other essential commodities. We are concerned with section 24 of the Order of 1975. It is reproduced herein below: "24. Power to call for and examine records of proceedings and revise orders. - If any person is aggrieved by an order passed by the Collector, the Commissioner, and if any person is aggrieved by an order passed by the Commissioner, the State Government, may, on an application made to him or it by the aggrieved person, within thirty days from the date of receipt of such order, stay the enforcement of such order. The Commissioner of the State Government, as the case may be, may also call for and examine the record of any enquiry or proceedings of the concerned officer exercising or failing to exercise the powers under this Order to add, to amend, vary, suspend or cancel any authorisation issued or deemed to be issued under clause 3 or any supply card issued or deemed to be issued under clause 6 or to forfeit the deposit for any part deemed thereof paid or deemed to be paid by a 11 fair price shop or authorised agent as security or to take any action under the provisions prescribed by or under this Order, for the purpose of satisfying himself or itself as to the legality or propriety of the order passed by such officer, and as to the regularity of the proceedings of such officer and may pass such order thereon as he or it, as the case may be, thinks fit: Provided that State Government may at any time, during the pendency of any enquiry or proceedings or within one year from the date of any order passed by any officer under the provisions prescribed by or under this Order, suomotu stay and pending enquiry or proceedings or the enforcement of such order if considered necessary and may call for and examine the record of any such enquiry or proceedings, and pass such order thereon as it thinks fit: Provided further that, the Commissioner or the State Government, as the case may be, shall not pass any order under this clause which adversely affects any person unless such person has been given a reasonable opportunity of being heard. 9. A look to this section 24 makes it clear that revisional power has been conferred upon the Commissioner and the State Government, as 12 the case may be. They can call for and examine the record of any enquiry or proceedings of the concerned officer and amend, vary, suspend or cancel any authorisation issued or deemed to be issued under clause 3 or any supply card issued or deemed to be issued under clause No.6 or to forfeit the deposit or any part deemed thereof paid or deemed to be paid by a fair price shop or authorised agent as security. Limitation is that any aggrieved person may file such revision application within 30 days from the date of receipt of such order. Proviso to this section 24, empowers the State Government to stay pending enquiry or proceeding or the enforcement of said order suomotu also if considered necessary and may call for and examine the record of such enquiry or proceedings. Second proviso to this section 24 makes it obligatory for the Commissioner or the State Government i.e. Revisional Authority with such authority shall hear any person adversely affected by said order. Such hearing, it is mentioned, it should be a reasonable opportunity of being heard. Thus 13 expression "shall" is employed in second proviso. It is not the absolute discretion of the Commissioner or the State Government. It is a mandate of section 24, second proviso that they shall hear any person adversely affected. Public Distribution System is significant and important, to the needy and beneficiary. This Order of 1975, in fact, is in the interest of needy and beneficiary persons below the poverty line or in view of the policy laid down by the State Government. In substance, this system aims at making available necessary food grains to the needy at reasonable price. Such price is determined by the State Government. This is how it is important from the view point of beneficiary and poor public who is intended to receive this food grains at reasonable price. 10. Locus, needs to be considered by the Court in view of the aim and objects of this public distribution system of food grains. There are many food grains which are brought under the provisions of Essential Commodities Act by the competent government. Here is a case where the present Petitioner was 14 indisputably running a fair price shop, holding lawful authorization at Gokunda, at the relevant time. While forfeiting the security amount and canceling the authorisation of Respondent No.4, the authority concerned had directed attachment of the cards of concerned card holders from Shop No.150 which was earlier run by Respondent no. 4, to the shop of the present petitioner. Thus, petitioner was lawfully permitted by the competent authority to distribute the food grains in view of the Order of 1975 to the card holders who were affiliated to his shop. On this factual background, it is not possible to countenance to the submission of learned counsel Mr. Deshmukh that petitioner has no locus. I reject the argument. I am holding that the present petitioner has filed the petition which can be entertained by this Court and he comes within the expression"any person adversely affected". 11. Even if the submission of learned counsel Mr. Deshmukh is accepted that the Petitioner has no locus-standi, Respondent No.4 does not have legal authority for restoration of the 15 food grains. Serious are the charges levelled. Learned Minister himself has recorded a finding that partly Respondent No.4 has accepted the charges. Misappropriation of the food grains running into an amount of Rs. 80,000/- and some odd is in fact a serious charge. Persons entitled for such food grains had been deprived. Learned Minister seems to had been weighed with the submission, on behalf of Respondent No.4, that to run a fair price shop is the means of sustenance. Regrettably, it is to be observed that many of the card holders, who were entitled to receive the food grains to feed their families were ignored. This approach of the learned Revisional Authority, simply I am noticing for rejection. While considering conflicting interest of individual and public interest, public interest needs to be preferred and uphold. In my view, order impugned is perverse, on this ground which concern about many more poor card holders. 12. The Revisional jurisdiction can be exercised by the Revisional Authority in view of seciton 24 of the Order of 1975. 16 Limitation mentioned in that section is of 30 days. I am not examining the issue whether power to condone the delay vests with the learned Revisional Authority or otherwise. Fact remains that there was no such application filed for condonation of delay. On this background, it was not advisable absolutely for the learned Revisional Authority to entertain the revision application and proceed to pass further order. In all and all, order impugned, being perverse and contrary to the public interest, of card holders, requires to be quashed and set aside in extraordinary jurisdiction of this Court. Circumstance that, fine amount is deposited and misappropriated amount is deposited leads me nowhere. If Respondent No.4 is aggrieved by this order, it was open for him to challenge those orders by taking appropriate legal proceeding. If he has complied with the order, this circumstances does not give any right to Respondent No.4 to seek enforcement of the order especially when said order is under challenge and this court is not accepting the order passed by the learned 17 Revisional Authority. 13. It is a fit case wherein extraordinary jurisdiction needs to be exercised by quashing and setting aside the order impugned. 14. Writ Petition, therefore, is allowed. Impugned order is quashed and set aside. Order passed by the learned Sub Divisional Officer, Kinwat, district Nanded dated 23rd June, 2003 stands restored. It is made clear, if statute provides or Order of 1975 provides, for filing of application for condonation of delay and Respondent no.4 choses to file such application, it is for the learned Revisional Authority to consider said application in accordance with the provisions of law, however, he shall give opportunity of being heard to the present petitioner. Petition is allowed in above terms. Rule is made absolute accordingly, without any order as to costs. 15. At this stage, Mr. Deshmukh points out order dated 14th August, 2009 wherein by ad- interim order, this Court directed the parties to maintain status-quo as on that day. Mr. Deshmukh seeks suspension of this order for four weeks. Counsel for the Petitioner 18 opposes this prayer. I have given anxious consideration to the submissions. In the fact and circumstances of the present case, status- quo, which was earlier granted by this Court shall stand extended till 8th February, 2010. [S.B.DESHMUKH, J.] Dated:25/01/2010. ans/8435