Bombay High Court High Court

Business vs The State Of Maharashtra on 27 August, 2010

Bombay High Court
Business vs The State Of Maharashtra on 27 August, 2010
Bench: B. P. Dharmadhikari
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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH




                                                                       
               WRIT PETITION NO.  4114  OF  2010




                                               
     Dhyaneshwar Mahadeo Ambure,
     aged about 55 years, occupation




                                              
     Business, r/o Wadgaon Range,
     Tq. Karanja, District - Washim.             ...   PETITIONER

                Versus




                                    
     1. The State of Maharashtra
                     
        through its Secretary of Food,
        Civil Supply and Consumer
        Protection Department,
                    
        Mantralaya, Mumbai.

     2. District Supply Officer, Washim,
        Tq. and District - Washim.
      
   



     3. Anil Yashwant Padhen,
        age - Major, Occupation - Not
        Known, r/o Wadgaon Range
        Post - Manbha Tq. Karanja,





        District - Washim.                        ...   RESPONDENTS



     Shri P.S. Patil, Advocate for the petitioner.





     Shri A.M. Joshi, Advocate for respondents No. 1 & 2.
                              .....

                                    CORAM :  B.P. DHARMADHIKARI, J.

AUGUST 27, 2010.

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ORAL JUDGMENT :

Heard Shri Patil, learned counsel for the petitioner

and Shri Joshi, learned AGP for respondents No. 1 & 2 finally by

consent, by making Rule returnable forthwith.

2. The contention is, the Deputy Commissioner of

Supplies, on 18.06.2007, allowed revision and set aside the

orders of District Supply Officer (DSO) dated 08.05.2007 and

directed enquiry on six points. Ignoring that, a show cause

notice dated 29.08.2008 was served upon the petitioner which

was replied by him. On 14.01.2009, the Tahsildar recommended

a minor punishment. The DSO overlooked all this and on

15.06.2009 canceled the authorization of fair price shop

forfeiting entire security deposit. The petitioner raised his

grievance before the Deputy Commissioner of Civil Supplies on

06.07.2009 and that authority directed fine of Rs.1,000/- to be

inflicted upon the petitioner and restored his authorization.

Respondent No. 3 – complainant then approached the Hon’ble

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Minister and the Hon’ble Minister has restored the earlier order

of cancellation of authorization.

3. Shri Patil, learned counsel has invited attention to

Government Resolution dated 12.11.1991 to urge that without

following the prescribed procedure, punishment has been

inflicted for defaults of serious nature and the Hon’ble Minister

has overlooked the three categories of defaults as noted therein.

The learned counsel further states that the material on record

showing that nobody had complained against the establishment

of the petitioner has not been evaluated. The fact that in past 12

years, there were no such incident is also overlooked.

4. With the assistance of learned counsel, I have

perused the relevant orders. The order dated 18.06.2007 passed

by the Deputy Commissioner (Civil Supplies) shows that the

authority found that there were two enquiries and two different

reports. Because of this finding, he felt that a third enquiry was

necessary. The perusal of show cause notice dated 29.08.2008

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shows that it was based on report of Tahasildar dated 2/8/2008

in pursuance of the order dated 18.06.2007 itself. It gave details

of malpractices & 15 instances. It is, therefore, obvious that the

authorization in favour of the petitioner was already canceled

earlier and it was restored on 06.07.2009. The said investigation

and old matter continued further and on 29.08.2008 show cause

notice is issued in furtherance thereof. The report of Tahsildar

on which the petitioner has placed reliance also does not

exonerate the petitioner. It holds that for the food grains lifted

by him, the petitioner was not in a position to give satisfactory

explanation and there were irregularities in distribution. The

recommendations of the Tahsildar to inflict minor punishment is,

therefore, not very relevant. It can not affect the jurisdiction

conferred by law on statutory authorities. The malpractices

noticed can not be viewed as minor in any way. The DSO,

therefore, has correctly observed that there were serious

irregularities and hence has ordered cancellation of

authorization and forfeiture of security deposit.

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5. Deputy Commissioner on 06.07.2009 overlooked the

fact that the shop was earlier already canceled and the said case

itself was going on further. Deputy Commissioner, therefore,

erroneously relied upon Government Resolution dated

12.11.1991 and held that the petitioner was not given proper

opportunity. Then, instead of directing department to give him

proper opportunity, only on that ground, the order has been set

aside by him and fine of Rs.1,000/- came to be inflicted. The

Deputy Commissioner has not recorded a finding that the

conclusions drawn by DSO in his order dated 15.06.2009 are in

any way erroneous or then charges proved against the petitioner

were not of grave or serious nature. The Hon’ble Minister has

noticed these aspects and therefore has interfered in the matter

in revision and restored the penalty of forfeiture of the

cancellation of authorization. There is no variation of

Government Resolution dated 12.11.1991.

6. Earlier the Deputy Commissioner noticed two

different reports and hence called for the third report. On this

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occasion said report dated 02.08.2008 is not even perused and

issuance of show cause notice dated 29.08.2008 by DSO or reply

dated 08.09.2008 by petitioner to it is conveniently overlooked

to grant relief to petitioner. The fact that old case itself was

going on is also forgotten and GR dated 12.11.1991 is relied

upon to justify favour shown to petitioner. Even while so doing

the finding in impugned order dated 15.06.2009 recorded by

DSO on misconducts are not demonstrated to be either

erroneous and categorization of the same as serious misconducts

by State Government it said Government Resolution itself has

been ignored. This attitude and approach of Deputy

Commissioner as appellate authority functioning under an

important welfare enactment is against the public interest and

defeats the very purpose of public distribution system. This

authority has itself violated the procedure and precautions to be

adopted in such matters prescribed therein by Government to

improve its penal actions and avoid adverse court orders on

technical grounds. The order impugned herein & passed by the

Hon. Minister in fact advances the spirit behind said Government

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Resolution and cause of public distribution system. Respondent

No. 1 State Government needs to take stern steps to avoid such

undue liberal approach on part of its officers.

7. In writ jurisdiction, therefore, I am not inclined to

interfere in the matter. In any case, violation of Government

Resolution dated 12.11.1991 cannot be a ground to invoke writ

jurisdiction in present circumstances. I do not find any merit in

writ petitioner and hence, the same is dismissed. Rule

discharged. However, in the facts and circumstances of the

case, there shall be no order as to costs.

JUDGE
*******

*GS.

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