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2006 DIGILAW 2049 (BOM)

Sandeep Ramkishan Pande v. State of Maharashtra

2006-12-18

V.R.KINGAONKAR

body2006
COURT’S ORDER: 1. Heard Shri A.B.Kale, learned Advocate for the petitioner, Shri B.J.Sonwane, learned AGP for respondents No.1 to 4 and Shri V.P.Patil, learned counsel for respondent No.5. 2. This petition relates to the dispute regarding legality and propriety of distribution of public largacy, namely, licence to run a fair price shop. Pursuant to an advertisement for granting licence to run a fair price shop at village Pimpari (Khurd), five applications were received. Out of those five applicants, name of respondent No.5 Smt.Shradha Rahul Pande was at serial No.1 and in her favour Gramsabha passed a resolution, recommending her case for grant of the licence, in accordance with the Government Policy. The name of present petitioner was at serial No.5. All the eligible four applicants were at serial No.2 in the priority list. Out of the four, the respondent No.5-Shradha was having capital to the extent of Rs.50,000/- whereas the petitioner was having capital to the extent of Rs.53,000/-. Both of them are under-graduates. The District Supply Officer held that comparatively the case of petitioner stands on better footing because the capital investment with him was more. The District Supply Officer kept aside the recommendation of the Gramsabha and granted licence in favour of the petitioner. The decision was challenged before the Commissioner by way of appeal. The appeal preferred by the respondent No.5 came to be dismissed. The respondent No.5 then preferred a revision petition urging the Hon’ble Minister, Food, Supply and Consumer Protection, to invoke powers under clause 24 of the Maharashtra Scheduled Commodities (Regulation of Distribution) Order, 1975. The Hon’ble Minister noticed certain illegalities committed by both the authorities and as such reversed the findings and held that the respondent No.5- Shradha was eligible for grant of the licence to run fair price shop. Revision petition was accordingly allowed and direction was issued to grant licence in her favour. This order is subject matter of the challenge in the writ petition. 3. Shri A.B.Kale, learned counsel appearing for the petitioner would submit that the Minister could not have entertained the second revision petition. He invited my attention to the Judgment of a Single Bench of this court, in "Bhupendra Villa Premises Co-operative Society Ltd. and another V/s Chandrakant G.Shah and others" ( 2001(2) Mh.L.J.834) in which Single Bench of this court held that second revision under Section 154(2) of the Maharashtra Co-operative Societies Act was not tenable. He invited my attention to the Judgment of a Single Bench of this court, in "Bhupendra Villa Premises Co-operative Society Ltd. and another V/s Chandrakant G.Shah and others" ( 2001(2) Mh.L.J.834) in which Single Bench of this court held that second revision under Section 154(2) of the Maharashtra Co-operative Societies Act was not tenable. He also invited my attention to the case of "Aundal Ammal V/s Sadasivan Pillai" (AIR 1987 SUPREME COURT 203). That was a case under the provisions of the Rent Act there is specific provision which debars the second revision. As against this, learned counsel for the respondents would rely on "Parmeshwar Sihoratan Bohara and another V/s State of Maharashtra and another" ( 1997 (2) Mh.L.J. 252 ). A Division Bench of this court has held that in view of clause 24 of the Maharashtra Scheduled Commidities (Regulation of Distribution ) Order, 1975, the suo motu powers available to the State Government are wider than one conferred on Commissioner in the first part of the Clause 24 and therefore, exercise of such powers by the State Government is not illegal. One can not be oblivious of the fact that this power available to the State Government is specifically enumerated in the relevant provisions of the Maharashtra Scheduled Commodities (Regulation of Distribution) Order, 1975. The Government largacy and the licensing are the issues involved herein. There is nothing wrong if more powers are made available to the State Government in such matters. I am bound by the Judgment of the Division Bench of this court, in this context, and as such I do not find any force in the contentions of learned counsel Shri A.B.Kale, regarding absence of jurisdiction available to the Hon’able Minister. 4. Shri A.B.Kale, learned counsel, would further submit that the very recommendation of the Gramsabha is doubtful and there was no meeting of Gramsabha held. He further submitted that Honourable Minister could not have recorded any findings in respect of the prior criminal case initiated against the petitioner, particularly when there were no pleadings. He would submit that the respondent No.5- Smt Shradha is not inhabitant of the village and as such was not eligible to participate in the process. He seeks to rely on "Bhagwan Dass & another V/s Kamal Abrol & others" (2005(5) ALL MR (S.C.) 756). 5. He would submit that the respondent No.5- Smt Shradha is not inhabitant of the village and as such was not eligible to participate in the process. He seeks to rely on "Bhagwan Dass & another V/s Kamal Abrol & others" (2005(5) ALL MR (S.C.) 756). 5. Shri A.B.Kale, learned counsel, strenuously argued that the findings of the District Supply Officer and the Commissioner ought not to have been upsetted in the revisional jurisdiction and there was no perversity demonstrated by the respondent No.5 in the context of those findings. He urged, therefore, to decide the case of the petitioner on the strength of the findings rendered by the District Supply Officer and the Commissioner. Per contra, learned counsel Shri V.P.Patil, appearing for the respondent No.5, would invite my attention to clause 3-A, which was substituted by way of amendment with effect from 28th January, 1992 in the Maharashtra Scheduled Commodities (Regulation of Distribution) Order, 1975. This clause reads as follows: "3-A. Order of priority to be followed in issuing authorisations to ration shops.-(1) While issuing authorisation to ration shops under clause 3, the State Government or the Collector, as the case may be, shall give due regard to the following order of priority, namely:- A. I.T.D.P.Areas.-(1) Adiwasi person permanently residing in a village or in the village included in the group of villages for which a fair price shop is to be granted. The Adiwasi educated woman shall however, be given priority over educated unemployed Adiwasi person. (2) Adiwasi Co-operative Societies at village level, (3) Consumer Co-operative Society of Adiwasi Woman, (4) Other Consumer Co-operative Societies. B. Other Areas.- (1) Consumer Co-operative Society of Women,(2) Other Consumer Co-operative Societies, (3) Vividh Karyakari Seva Sahakari Sanstha at village level. (4) Person from Scheduled Caste, Scheduled Tribe, (5) Freedom Fighter. (6) Ex-serviceman (includes the widow, son or unmarried daughter of serviceman killed in war action), (7) Physically handicapped person, (8) Project affected persons, (9) Others. (2) While following the priority from Sr.Nos.4 to 9 under sub-clause (1), the woman applicant and thereafter the educated unemployed person shall be given priority in the respective group." 6. This court, will not consider disputed questions of facts in the exercise of jurisdiction under Article 227 of the Constitution of India. (2) While following the priority from Sr.Nos.4 to 9 under sub-clause (1), the woman applicant and thereafter the educated unemployed person shall be given priority in the respective group." 6. This court, will not consider disputed questions of facts in the exercise of jurisdiction under Article 227 of the Constitution of India. Therefore, there is no substance in the contention of the petitioner that (6) the respondent No.5-Smt. Shradha is not inhabitant of the village although such finding is rendered by the authorities. No such ground was taken in the earlier proceedings. The order of the District Supply Officer would also show that she is inhabitant of the same village. Secondly, there is a Gramsabha resolution passed on 19.03.2005 whereby her name was recommended for allotment of the ration shop. The petitioner disputes fact about holding of such meeting and alleged that there was no Gramsabha meeting held. The proceedings book of the Gramsabha was called for perusal and appears to have been prepared on the relevant date. Hence, such a question of fact need not be gone into by this court. There is prima facie evidence to show that the Gramsabha meeting was held and the recommendation of the name of the respondent No.5 was made for grant of the licence to run the ration shop. The District Supply Officer also had reached the conclusion that the Gramsabha recommended her name. The District Supply Officer only made some general observations and held that since the respondent No.5 and the petitioner were both eligible, the financial condition of the applicant, and his educational qualification being more, he would be entitled to get the licence for the fair price shop. It appears that the District Supply Officer failed to consider the purport of Clause-3-A which is reproduced above. If there are applicants having same priority number and fall in a group then, amongst those applicants, a woman applicant will have an edge over the others. So, even amongst the applicants of same priority list, a member of Scheduled Caste or a woman candidates should be considered with more generous attitude. This Government Policy is completely over looked by the District Supply Officer. I have perused the order passed by the Deputy Commissioner, (Supply), Nashik. The said order dated 07.11.2005 is bereft of any reason. It is a non-speaking order. This Government Policy is completely over looked by the District Supply Officer. I have perused the order passed by the Deputy Commissioner, (Supply), Nashik. The said order dated 07.11.2005 is bereft of any reason. It is a non-speaking order. Obviously, such exercise of revisional jurisdiction by the Deputy Commissioner (Supply) was without application of judicial mind. This is an example as to how judicial or quasi judicial authority should not exercise the jurisdiction. 7. The impugned order rendered by the Hon’ble Minister would disclose following reasons in support of the findings rendered by him. They are: (i) The petitioner as well as the respondent No.5 are shown to be unemployed but the employment card of the petitioner was not renewed after 1994 and, therefore, as on the date of consideration of the applications, he was not proved to be an unemployed person., (ii) The petitioner was prosecuted for offence under the Essential Commodities Act and hence his licence for the ration shop was cancelled on the earlier occasion., (iii) The Gramsabha which recommended the case of respondent No.5-Shradha, whereas the case of the petitioner was not recommended. (iv) The report of Tahasildar, Dharangaon was in favour of the respondent No.5. and (v) She being a woman was more eligible. 8. Assuming that in the absence of pleadings, the reason No.(ii) could not have been considered, yet the other part of the order in question would discloses that the Honourable Minister has recorded the sufficient reasons to reach the findings in favour of the respondent No.5. The learned counsel Shri A.B.Kale would submit that the facts could not have been reappreciated by the Hon’ble Minister. Had there been some appreciation of facts by the Deputy Commissioner ( Supply ) and some discussion of the reasons, perhaps such argument was could hold good. However, there is no reason recorded by the Deputy Commissioner and there was no appreciation of evidence and the facts pertaining to eligibility of each candidates. Consequently, the exercise of powers available under Clause 24 of the said Order can not be found faulted with. All said and done, I am not inclined to entertain the disputed questions raised in the petitions and the petition can not be entertained when the impugned order is found quite sustainable. 9. In the result, the petition is summarily dismissed. No costs. 10. All said and done, I am not inclined to entertain the disputed questions raised in the petitions and the petition can not be entertained when the impugned order is found quite sustainable. 9. In the result, the petition is summarily dismissed. No costs. 10. The interim relief stands vacated and the action be taken in accordance with the impugned order of the Honourable Minister within one month. 11. As this writ petition is disposed of Civil Application No.11221 of 2006 does not survive. Hence, it is disposed of. 12. Parties may act on C.C.