1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CIVIL REVISION APPLICATION No. 10 OF 2006
Nandbodhi Magaswargiya Grahak
Sahakari Sanstha, Maryadit, through
its Chairman, Uttamrao S/o Mukundrao
Shinde, Age 64 years, Occu. R/o
plot No. 1148, Sai Nagar, N-6,
Cidco, Aurangabad. ...PETITIONER
VERSUS
1]
Leelabai W/o Sukhdeo Palaskar,
Age 45 years, Occu. Household,
r/o House No. 36, N-12, Hudco,
Aurangabad.
2] District Supply Officer,
Collector office, Aurangabad.
3] Food Grains Distribution Officer,
Collector office, Aurangabad.
4] Additional Collector,
Collector office, Aurangabad.
5] State of Maharashtra
(Food, Civil Supplies and
Consumer protection Department,
through Collector of District
Aurangabad, Collector office,
Aurangabad. ..RESPONDENTS
...
Mr. P.S. Dighe, Advocate for Petitioner
Mr.S.L. Jondhale, Advocate for Respondent No. 1
Mr.V.H. Dighe, A.G.P. for respondent Nos. 2 to 5
CORAM :- S.S. SHINDE, J.
JUDGEMENT RESERVED ON : 18th October, 2010
JUDGMENT PRONOUNCED ON : 28th October, 2010
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JUDGMENT:
This Civil Revision Application is filed,
challenging the Judgment and Order dated 22th December,
2005 passed by the learned Civil Judge, Senior
Division, Aurangabad Dist. Aurangabad below Exh. 30 in
Regular Civil Suit No. 653 of 2005. The petitioner
herein is the original defendant No. 5 and respondent
No. 1 is original plaintiff in Regular civil Suit No.
653 of 2005. The respondent Nos. 2 to 4 are original
defendant Nos. 2 to 4 in the said suit.
2. The plaintiff filed the suit with following
prayer :
“A] The Suit of the plaintiff may kindly be
decreed with costs.
B] That, the defendants be restrained from
discontinuing the business carried by the
plaintiff of fair price shop NO. 73 withoutfollowing due procedure under by issuing the
perpetual injunction and declare the orders dated
6/09/2005, 8/09/2005 and 22/08/2005 passed by the
defendant Nos. 1 to 4 back and behind without
hearing the plaintiff as null and void.”
In the said Regular Civil Suit petitioner
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3herein filed application under Section 9-A of Civil
Procedure Code, and prayed for framing issue of
jurisdiction under Section 59-A of Civil Procedure
Code and it be tried first. The original plaintiff
filed say on the said application stating that the
application is misconceived. The remedy available
under the Act will operate as a bar to the
Jurisdiction of the Civil Court, therefore, this
application is not tenable.
ig The learned Civil Judge,
Senior Division, Aurangabad by his order dated 19th
October, 2005 granted application and framed the
preliminary issue thus :
" Whether this Court has jurisdiction to
try the suit in view of Maharashtra
Scheduled Commodities (Regulations &
Distribution) Order 1975?"
The said application filed by the petitioner
herein was exhibited at Exh. 30. The learned Civil
Judge, Senior Division, Aurangabad by his order dated
22th December, 2005 held that there is no express bar
under Maharashtra Scheduled Commodities (Regulations &
Distribution) Order 1975, to oust the jurisdiction of
Civil Court. Being aggrieved by the said order dated
22th December, 2005, this Civil Revision Application is
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4filed by the original defendant No. 1.
3. The learned counsel appearing for the
revision petitioner submitted that licence bearing No.
73, in respect of fair price shop and kerosene is
given in favour of petitioner society and petitioner
society is running the same in the Aurangabad city. In
the year 1982, the petitioner society went in
liquidation and
ig administrator was appointed by the
Assistant Registrar Co-operative Societies,
Aurangabad, and the shop Nos. 73,77 and 78 were given
to the employees of the petitioner society for running
the same. Shop No. 73 was run by the husband of the
respondent No. 1, namely Sukhdeo Palaskar who was the
salesman of the petitioner society. In 2003, the
petitioner society came up from liquidation. The
application was filed with the authorities for handing
over the fair price shop Nos. 73,77 & 78 to the
society, as it was earlier run by the petitioner
society.
On 16th August, 2003, the husband of the
respondent No. 1, running the fair price shop No. 73,
expired. On 7th November, 2003, the District Supply
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Officer, Aurangabad rejected the application of the
petitioner for handing over the said shops No. 73,77 &
78 in favour of the petitioner society. Being
aggrieved, petitioner society filed revision before
the State Government, challenging the letter dated 7th
November, 2003 issued by the District Supply Officer,
Aurangabad. The Minister, Food, Civil Supplies
Department, Mantralaya, Mumbai, on 18th August, 2004
allowed the said
ig revision filed by the petitioner
society, thereby directing to allot the shops No.
73,77 & 78 to the petitioner society.
It is the case of the petitioner that on
04th February, 2005, the respondent No. 1, one of the
two wives of said Shri Sukhdeo Palaskar made
application to District Supply Officer, Aurangabad to
give her licence of shop No. 73 being legal heir of
Sukhdeo Palaskar. On 27th August, 2005, the District
Supply Officer, Aurangabad issued letter to the
Distribution Officer to take action on the application
given by respondent No. 1 on 9th June, 2005.
The District Supply Officer, Aurangabad,
refused to allot the kerosene quota to the petitioner
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society, and therefore, the revision was filed before
the State Government by the petitioner. Though the
order dated 18th August, 2004, was passed by the State
Government giving shops No. 73, 77 & 78 to the
petitioner society, but as the quota of kerosene was
not allotted the petitioner society approached to the
State Government by filing revision and same was heard
by State Government on 14th July, 2005 and same was
reserved for orders.
According to the Counsel for the
petitioner, the Distribution Officer who had no
authority to take decision for allotting the shop,
issued notice of hearing to the respondent No. 1,
directing to remain present on 28th July, 2005. The
Distribution Officer without any authority in law and
without any powers and without taking permission of
the higher authorities, issued a letter in favour of
respondent No. 1, directing to run the said fair price
shop No. 73 of which the licence was with the
petitioner society. On 18th August, 2005, the superior
authority of the Distribution Officer, the Additional
Collector issued letter to the Distribution Officer,
Aurangabad, that he had no powers to issue letter
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dated 2nd August, 2005 in favour of respondent No. 1.
The learned Counsel further submitted that on 22th
August, 2005, the revision filed by the petitioner
society came to be allowed, thereby directing to allot
the kerosene quota in favour of the petitioner
society. On 6th September, 2005, the District Supply
Officer, Aurangabad immediately in view of the letter
issued by the Additional Collector stopped the supply
of the essential commodities to the respondent No. 1.
On 8th September, 2005 the District Supply Officer
issued letter to the Distribution Officer referring
the orders dated 18th August, 2004 and 22th August, 2005
passed by the State Government and directed to issue
allocation in favour of the petitioner society. The
respondent No. 1 who is original plaintiff filed
Regular Civil Suit No. 635 of 2005 before Civil Judge,
Senior Division, Aurangabad for perpetual injunction
against shop No. 73 and declaration challenging the
letters dated 6th September, 2005, 8th September, 2005
and order dated 22th August, 2005 which are mentioned
here-in-above. The petitioner filed application Exh.
30 for framing preliminary issue of Jurisdiction under
Section 9-A of Civil Procedure Code. The Civil Court
held that Court has jurisdiction to entertain the
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suit, and there is no express bar in the Maharashtra
Scheduled Commodities (Regulations & Distribution)
Order 1975.
4. The learned Counsel appearing for the
petitioner submits that Maharashtra Scheduled
Commodities (Regulations & Distribution) Order 1975
(Here-in-after referred as ‘said order of 1975’) has
been enacted as
ig per Section 3 of the Essential
Commodities Act, 1955. Clause 3 of the Essential
Commodities Act, 1955 gives powers to the authorities
for issuing necessary licence /authorization for
running fair price shop. Clause 24 of the said order
provides the machinery to the aggrieved person,
approaching the Commissioner or the State Government
against the order passed by the Collector. Therefore,
according to the learned counsel for the petitioner,
the respondent No. 1 was having remedy to approach the
State Government under clause 24 of the said order of
1975. As the machinery provided under the said order
of 1975, therefore, the jurisdiction of the Civil
Court is impliedly barred. The learned Counsel
appearing for the petitioner invited my attention to
the provisions of Section 6 of the Essential
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Commodities Act, 1955, and submitted that as per said
section the Order of 1975 is having overriding
effect, and therefore, procedure provided under the
said order has to be followed by the aggrieved person.
The learned Counsel invited my attention to the
reported Judgment in case of “Harishankar Bagla and
another V/s. State of M.P., reported in AIR 1954 S.C.
465″ and submitted that, it has been held that the
provisions of the order made under section 3 of the
Essential Commodities Act, 1955 will prevail in
preference to the provisions of other laws. It has
been also further held that as soon as the order comes
into force that will have effect not withstanding any
inconsistency therewith contained in any enactment
other than this Act. It is further submitted that the
said order of 1975 is created by a statute i.e.
Essential Commodities Act, 1955 and it provides a
machinery for the enforcement of the right giving
remedy and therefore, the Civil Court’s Jurisdiction
is impliedly barred. The learned Counsel in support of
his contention placed reliance on the following
Judgments :
1] “Raja Ram Kumar Bhargava (dead) by LRs V/s.
Union of India, reported in AIR, 1988, S.C. 752”
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and more particularly Head Note
2] Bharat Prasad and others V/s. State of Bihar
& others, reported in (2009)6, SCC, 698.
3] Music Choice India Pvt. Ltd. V/s.
Phonographic Performance Ltd., reported in
2009(2), Mh.L.J.651.
4] State of A.P. V/s. Majeti Laxmi Kantha
Rao(D) by L.R.s. & others, reported in AIR, 2000,
SC 2220.
It is further submitted that the respondent No. 1
did not have legal right to claim the principles of
natural justice, as no licence or authorisation has
been given in favour of respondent No. 1 by the
authorities for running the fair price shop No. 73, as
the licence is with the petitioner society since the
year 1982, and the same has been renewed from time to
time. The respondent No. 1 is claiming right to heard
only on the basis of letter dated 2nd August, 2005
issued by the Distribution Officer, who has no
authority to issue such letter and which has been
informed by the Additional Collector immediately on
18th August, 2005, and accordingly the supply of food
grains was immediately stopped on 6th September, 2009.
According to the counsel for the petitioner, the
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revision which was filed by the petitioner society
before the State Government in July, 2005 and the
letter issued by the Distribution Officer to the
respondent No. 1 is dated 2nd August, 2005 i.e. after
filing of revision and therefore, the respondent No. 1
cannot claim any right to be heard before passing
order on 22nd August, 2005. The revision filed by the
petitioner society was heard on 14th July, 2005 when at
the relevant time there was no document in favour of
respondent No. 1 to claim principles of natural
justice before the State Government.
The learned Counsel further submitted
that the husband of respondent No. 1 was the salesman
of the petitioner society, and therefore, the said
shop No. 73 was given to him for running as the
petitioner society went into liquidation. According
to the Counsel, the State Government has passed order
dated 18th August, 2004 in favour of the petitioner
society allotting the said shops No. 73,77 & 78 and as
the kerosene quota was not allotted to the petitioner
society again revision was filed before the State
Government, and the order dated 22nd August, 2005 was
passed in favour of the petitioner society, thereby
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directing to allot kerosene quota to the petitioner
society. Therefore, learned Counsel for the petitioner
society would submit that the principle of natural
justice can be claimed by a person who had some right
in his favour, at the time of filing first revision
and second revision by the petitioner society before
the State Government. The respondent No. 1 is claiming
the right to run the business of fair price shop which
can be granted under the provisions of the said order
of 1975 and not by the Civil Court as will be evident
from the prayers made by the respondent No. 1 in her
suit. Therefore, learned Counsel appearing for the
petitioner would submit that this Civil Revision
Application deserves to be allowed.
5. On the other hand, learned Counsel appearing
for the respondent No. 1, has invited my attention to
the pleadings in the plaint and reasons recorded by
the Trial Court in its impugned Judgment and order and
submitted that jurisdiction of the Civil Court is not
expressly barred by the said Order of 1975. There is
no any specific provision in the said Order of 1975,
which bars jurisdiction of the Civil Court. The
learned Counsel submitted that the order passed by the
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Minister, Food Civil Supplies, in revision is without
hearing the respondent No. 1. Since, 1984 the
respondent No. 1 was carrying business of fair price
shop. In the year 2003, the fair price shop was
transferred in the name of respondent No. 1. The
order passed in the revision is behind back of the
respondent No. 1, and therefore, the order which is
passed without hearing to the respondent No. 1, can be
very well challenged by way of filing Civil Suit and
jurisdiction of the Civil Court is not barred in that
case. The learned Counsel further submitted that, on
2nd August, 2005 the fair price shop was allotted to
the respondent No. 1. The learned Counsel submitted
that nothing has been stated in the said Order of
1975, which bars jurisdiction of the Civil Court. The
learned Counsel further invited my attention to the
pleadings in the plaint, annexures thereto and
original record and submitted that the impugned order
passed by the Civil Court is perfectly sustainable and
no interference is warranted in the revisional
jurisdiction by this Court.
6. The learned Counsel further submitted that
the husband was carrying and conducting the business
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of the fair price shop No. 73, who had got licence
Parwana No. 06955 dated 17-08-1984, the said was
renewed time to time. That, while conducting and
carrying business of fair price shop NO. 73, he has
expired on 16-08-2003. The District Supply Officer,
Aurangabad has ordered to Food Distribution Officer,
Aurangabad for making enquiry and to issue Licence.
Thus, enquiry was carried, statements were recorded.
Thereafter, onig 02-08-2005, a authority letter cum
order has issued in favour of respondent No. 1 to
conduct and carry business of fair price shop NO. 73.
This Hon’ble Court pleased to direct the petitioner to
produce a copy of revision petition which was filed
before learned Minister of Food Civil Supplies
Department, Mantralaya, Mumbai. But the petitioner
failed to comply of direction of this Hon’ble Court.
The petitioner has made a capital that the learned
Minister has issued order on 18-08-2004 in regards to
fair price shops Nos. 73,77 & 78. But the said order
has been challenged by the shop owner of fair price
shop No. 77 by filing a R.C.S. No. 238/2002. By that
order petitioner has been restrained to take shops by
Ld. Civil Judge Senior Division, Aurangabad vide its
order dated 04-02-2005. The said order is on record.
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The learned Minister has passed order behind back of
this respondent NO. 1 Leelabai Palaskar, which is bad
in law. The said is not binding on her.
7. The learned Counsel in support of his
contention placed reliance on the reported judgment,
in a case of “Rajasthan S.R.T.C. & others V/s. Mohar
Singh, reported in 2008 AIR SCW 3567” and submitted
that order of
ig Civil Court declaring dismissal of
service of bus driver of State Transport Corporation
as being passed in violation of principles of natural
justice cannot be said to be without jurisdiction. In
the event, it is found that the action on the part of
a statute or statutory rules, the Civil Court would
have the jurisdiction to give directions. The learned
Counsel further placed reliance on the following
reported Judgments of the Supreme Court / this
Court :-
1] B. Nagabhushanam V/s. State of Karnataka,
reported in 2008, AIR, SCW 3573.
2] Laxminarayan Ramdayal Gutani Vs. State of
Maharashtra, reported in AIR 1983 Bombay 232 more
particularly in para No. 10 of the said Judgment.
3] Rasta Peth Education Society, Pune V/s.
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Pethkar Udhao Bhimashankar, reported in 1994,
Mh.L.J. 725.
4] Madhav Kesu Khuspe V/s. Sundarabai Mugutrao
Phadatare since deceased by heirs Krishna Dagdu
Khuspe and others, reported in 1978, Mh.L.J. 289.
The learned Counsel submitted that it
cannot be countenanced that for all purposes the
jurisdiction of the Civil Court is taken away. The
power of the Civil Court to examine cases where the
provisions of the Act have not been complied with or
the Statutory Tribunal has not acted in conformity
with the principles of judicial procedure or natural
justice remains unaffected. The learned Counsel
further placed reliance on reported Judgment of this
Court, in a case of “Baburao Anant Dhage & others V/s.
Jagannath Gopala Karale, reported in 1999(3), ALL MR
414″ and submitted that whenever the challenge to the
proceedings or the document is based on fraud, the
fraud being a complicated question affecting the civil
rights of the parties, it is a matter to be dealt with
by the Civil Courts. Therefore, learned counsel
relying on various Judgments of the Supreme Court and
this Court would submit that the impugned Judgment and
Order passed by the Trial Court needs no interference
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at the hands of this Court. The learned Counsel
further submitted that even clause 24 of of the said
Order of 1975 contemplates hearing to the affected
party. However, admittedly respondent No. 1 was not
heard before passing orders, granting shop or kerosene
licence in favour of the petitioner society,
therefore, learned Counsel would submit that this
Civil Revision Application deserves to be dismissed.
8. The
learned A.G.P. appearing for the
respondents /State submitted that the said Order of
1975, provides remedy to the aggrieved person, if the
licence is granted or refused by virtue of provisions
of said Order of 1975 and therefore, the Civil Court
has no powers to entertain the suit.
9. I have heard learned Counsel appearing for
the petitioner, learned Counsel appearing for the
respondent No. 1 and learned A.G.P. for
respondents /State at great length. I have carefully
perused the pleadings in the revision, annexures
thereto, impugned Judgment and order passed by the
Court below, and also original record made available
for perusal. At the outset it would be relevant to
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refer Section 3 of the Essential Commodities Act, 1955
which reads thus :-
" Powers to control production,
supply,distribution etc. of essential
commodities -
(1) If the Central Government is of
opinion that it is necessary or expedient so
to do for maintaining or increasing supplies
of any essential commodity or for securing
their equitable distribution and
availability at fair price, [or for securing
any essential commodity for the defence of
India or the efficient conduct of military
operations], it may, by order, provide for
regulating or prohibiting the
production,supply and distribution thereof
and trade and commerce therein.
(2) Without prejudice to the generality
of the powers conferred by sub-section (1),
an order made thereunder may provide,-
(a) for regulating by licence,
permits or otherwise the
production or manufacture of any
essential commodity;
(b) for brining under cultivation
any waste or arable land, whether
appurtenant to building or not,
for the growing thereon of food-
crops generally or of specified
food-crops, and for otherwise,
maintaining or increasing the
cultivation of food-crops
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generally, or of specified food-
crops;
(c) for controlling the price at
which essential commodity may be
brought or sold;
(d) for regulating by licence,
permits or otherwise the storage,
transport, distribution, disposal,
acquisition, use or consumption
of, any essential commodity;
(e) for prohibiting the
ig withholding
essential commodity ;
from sale of any
[(f) for requiring any 0person
holding in stock, or engaged in
the production, or in the business
of buying or selling, of any
essential commodity,-
(a) to sell the whole or a
specified part of the quantity
held in stock or produced or
received by him, or
(b) in the case of any such
commodity which is likely to be
produced or received by him to
sell the whole or a specified part
of such commodity when produced or
received by him, to the Central
Government or a State Government
or to an officer or agent of such
Government or to a Corporation
owned or controlled by such
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Government or to such other person
or class of persons and in such
circumstances as may be specified
in the order."
The Maharashtra Scheduled Commodities
(Regulation of Distribution) Order, 1975 issued by the
Food and Civil Supplies Department, Sachivalaya
Annexe, Bombay. The opening portion of the said order
reads thus :-
” No.ECA-2875/2598/II- in exercise of the
powers conferred by sub section (1), read
with clauses (c), (d), (e), (f), (i), (ii)
of sub section (2) of Section 3 of theEssential Commodities Act, 1955 (x of 1955),
and of all other powers enabling the
Government of Maharashtra in this behalf,
read with the order of the Government ofIndia, Ministry of Agriculture (Department
of Food), No. GSR, 316(E), dated the 20th
June 1972 and the orders of the Government
of India, Ministry of Industry and CivilSupplies (Department of Civil Supplies and
Co-operation) No. S.O. 681 (E) and S.O.
682(E), dated the 30th November, 1974 and
with the prior concurrence of the Central
Government, the Government of Maharashtra
hereby makes the following order, namely :-
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1. Short title, extent and commencement –
(1) This order may be called the Maharashtra
Scheduled Commodities (Regulation ofDistribution) Order, 1975.
(2) It extends to the whole of the State of
Maharashtra excluding the Rationing Area.
(3) It shall come into force on the 1st day
of October 1975.”
Bare perusal of the afore mentioned extract
from the order would demonstrate that the said order
is passed in exercise of the powers conferred by sub
section (1) read with clauses (c), (d), (e), (f),
(h), (i) (ii) and (j) of sub section (2) of Section 3
of the Essential Commodities Act, 1955 (X of 1955).
U/clause 2 of the said order, definitions of
“authorised agent” “authorised establishment”,
“Collector”,”Commissioner”,”dealer”,”establishment”,”e
stablishment consumption”,”fair price shop”,”household
consumption”,”levy sugar”,”rationing area”,”supply
slip”,”supply card”, “supply document” and “scheduled”
are given. Perusal of clause 2 makes it clear that the
authorities Collector, and State Government is
empowered under the said order of 1975 to issue
licence, and issue card etc., and further to keep
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control over the licence and shops allotted under this
Order of 1975.
In clause No. 2 (f) the fair price price
shop is defined. The fair price shop means person in-
charge of the shop authorised under the provisions of
clause, and includes a person in-charge of a shop
where scheduled commodities are sold and is under the
control of Government. Therefore, it is clear that the
licenses are granted to run the fair price shop under
the provisions of said Order of 1975.
Clause 3 of the said order of 1975 reads
thus :-
“”issue of authorisation to fair price shops
and agents to obtain and supply scheduled
commodities”.–
(1) With a view to controlling the
distribution of scheduled commodities, the
State Government or the Collector may issue
an authorisation to any person for being a
fair price shop or for being an agent of any
fair price shop, to obtain and supply
scheduled commodities in accordance with the
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23provisions prescribed by under this Order.
(2) Every fair price shop shall deposit
with the Government or the Collector, a sum
not exceeding Rs. 5,000/- as may be
specified by it in this behalf, for the due
performance of the conditions of the
authorisation and the sum so deposited or
any part thereof, may without prejudice to
any other penalty, after enquiry and for
reasons to be recorded in writing, be
forfeited by the State Government or the
Collector for contravention of any such
conditions. If, as a result any departmental
action, the sum deposited or any part
thereof forfeited, the fair price shop shall
forthwith pay to Government such amount as
may be required to make up the prescribed
sum to be deposited as Security.
(3) On the commencement of this Order in
any area, in the case of an authorised fair
price shop who is deemed to be a fair price
shop under the Explanation to sub clause (f)
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of clause (2), any sum which stands
deposited by him as security immediately
before such commencement shall be deemed to
be deposited with the State Government as
full or part security for the purposes of
this clause.
(4) The State Government or the Collector
may, at any time whether at the request of
the fair price shop or authorised agent or
suo-motu, after making such enquiry as may
be deemed necessary and for reasons to be
recorded in writing, add to, amend, vary,
suspend or cancel the authorisation issued
or deemed to be issued to him under this
clause.”
On careful perusal of of clause 3 of the
said Order of 1975, it is abundantly clear that the
State Government or the Collector is empowered to
issue authorisation to any person being an agent of
any fair price shop to obtain and supply scheduled
commodities in accordance with the provisions
prescribed by or under this order. Perusal of the
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clause 3 would make it clear that only “the State
Government or the Collector is the competent authority
to issue an authroisation to any person for being a
fair price shop or for being an agent of any fair
price shop, to obtain and supply scheduled commodities
in accordance with the provisions prescribed by or
under this order.”(emphasis supplied)
In the context of controversy raised in
the present matter, the clause 24 is important. The
clause 24 of the said order of 1975 reads thus :-
” Power to call for an 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 bythe 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 theenforcement of such order. The Commissioner
or 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::: Downloaded on – 09/06/2013 16:35:21 :::
26authorisation issued or deemed to be issued
under clause 3 or any supply card issued or
deemed to be issued under clause 6 or toforfeit the deposit for any part deemed
thereof paid or deemed to be paid by a fair
price shop authorised agent as security totake any other 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 orderpassed by such officer, and as to the
regularity of the proceedings
officer may pass such order thereon as he or
of suchit, 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 thedate of any order passed by any officer
under the provisions prescribed by or under
this Order, suomotu stay any pending enquiry
or proceedings or the enforcement of suchorder if considered necessary and may call
for and examine the record of any 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.”
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27
10. The clause 24 of the said order of 1975
provides the remedy to the aggrieved person, by an
order passed by the Collector, or the Commissioner.
The State Government is also empowered to entertain
the revision by the aggrieved person. The State
Government can also 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, suo-motu stay any
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. The clause 24 of the said Order of 1975 further
provides 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.
11. In the aforesaid provisions of the Order of
1975, it is relevant to mention that the fair price
shop No. 73 was allotted to the petitioner on 18th
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28
August, 2004. The Minister, Food and Civil Supplies
Department, Mantralaya, Mumbai allowed the revision
filed by the petitioner and alloted the shops No.
73,77 & 78 to the petitioner society. It is admitted
position that by virtue of said order, even the shop
No. 73 for which respondent No. 1 has claimed the
reliefs in the suit, came to be allotted to the
petitioner society. At this juncture, it is relevant
to refer the pleadings in the suit, which would make
it clear that aggrieved by the order of allotment of
shop No. 73 in favour of present petitioner, the
respondent No. 1 herein i.e. plaintiff in suit did
file Writ Petition No. 6194 of 2004 before this Court.
In respect of Writ Petition bearing No. 6194 of 2004,
the respondent No. 1 has made following statement in
the plaint in para No. 6, which reads thus :-
” But the defendant No. 5 has tried
continuously to get the possession of fair
price shop No. 73 by hook or crook, who
sought orders from the Minister (Food and
Civil Supply) on 18/08/2004 into back and
behind of the plaintiff has filed a Writ
Petition NO. 6196 of 2004 through her
Advocate High Court Shri A.D. Sugdare
against the respondent No. 5 and others with
a prayer to issue a writ of mandamus or any
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29
other writ in like nature or order or
directions by the Honourable High Court to
grant permission to run the fair price shop
No. 73 usual terms and conditions. But there
was a caveat application No. 397 of 2004 of
the respondent No. 5. In the said caveat
application defendant No. 5 has contended
that “Non caveators are likely to be
challenging the impugned order dated 18th
August, 2004 which is passed by the
Honourable Minister for Food an Civil Supply
Department Mantralaya, Mumbai-32 in respect
of fair price shop Nos. 73,77 & 78 in case
No. VAM/1604/1168/PK/037/C.S.21. A copy of
the said caveat is annexed herewith and
marked as ANNEXTURE K. However, the
plaintiff has already made her statement in
the said Writ petition that the defendant
NO. 5 has filed a proceeding before the
learned Minister Mantralaya, Mumbai and
sought order on 18/08/2004, the plaintiff
was not the party in the said matter nor
issued a notice to the plaintiff by the
learned Minister for Food and Civil Supply
Department. Therefore, said order is not
binding upon the plaintiff. According to the
ratio laid down by the Honourable High
Courts and Honourable Supreme Court of India
that the orders passed in the proceeding are
not binding on a person in view of the
natural justice, because of the plaintiff is
not party in the matter before the learned
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30
Minister for Food and Civil Supply
Department, Mantralaya, Mumbai. Therefore,
the said order of the learned Minister for
Food and Civil Supply Department, Mantralaya
Mumbai is not binding on plaintiff. The
prayer of plaintiff made in Writ Petition
No. 6196 of 2004 for issuing direction to
allot fair price shop NO. 73 to her as a
succor and legal heir of deceased her
husband Sukhdeo Amrutrao Palaskar. The facts
of seeking order from the learned Minister,
Food and Civil Supply, Mantralaya, Mumbai by
the defendant NO. 5 into back and behind of
the plaintiff cannot be challenged into the
Writ Petition. The plaintiff sought the
permission to run the fair price shop NO. 73
from the defendant Nos. 1 & 2 vide order
dated 2/08/2005. Therefore, the Writ
Petition has become in fructuous. The
plaintiff. The plaintiff has filed a Civil
Application to withdraw the said writ
petition through a Civil Application No.
of 2005.”
The order allotting the fair price shop No.
73, by the Minister, Food Civil Supplies Department in
favour of petitioner herein was subject matter of the
said Writ Petition. On perusal of entire pleadings
extracted here-in-above, it is appears that the
respondent No. 1 who was petitioner in the said Writ
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Petition, did not sought liberty to file any other
proceedings, before any other authority or competent
Court. It appears that said Writ Petition was
withdrawn simplictor. At the relevant time when Writ
Petition was filed, the respondent No. 1 i.e.
petitioner understood correctly that the aggrieved
person by refusal of fair price shop has remedy as
provided under the provisions of said Order of 1975,
and in case the
ig State Government has taken final
decision, filing of Writ petition is appropriate
remedy. An order passed by the Minister, Food Civil
Supplies Department, allowing revision of the
petitioner granting fair price shop No. 73, in favour
of the petitioner society has attended finality. The
respondent No.1 herein should have sought liberty from
the High Court for filing any proceedings subsequent
to withdrawing the Writ Petition.
12. The another important aspect is that whether
the respondent No. 1 had any legal right available in
in his/her favour, when the revision of the petitioner
was heard by the Minister, Food Civil Supplies
Department and same came to be allowed by granting
fair price shop No. 73 by order dated 18th August,
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32
2004. At the relevant time the respondent No. 1 had no
any licence in her name. Even prior to that, licence
was not in the name of respondent No.1 First time on
2nd August, 2005, the Distribution Officer, without any
authority under law, without any powers, and without
taking permission or approval of the higher
authorities, issued a letter in favour of respondent
No. 1, directing to run the fair price shop No.73, of
which the licence
ig was in the name of petitioner
society. It is also pertinent to note that on 18th
August, 2005 the Additional Collector, Aurangabad
issued a letter to the Distribution Officer,
Aurangabad that he had no power to issue letter dated
2nd August, 2005 in favour of the respondent No. 1 i.e.
original plaintiff. Thus, understood the Distribution
Officer is not empowered or have any authority in law
to issue such letter dated 2nd August, 2005 in favour
of the respondent No. 1 for running the fair price
shop No. 73. As stated earlier, only the State
Government or Collector, is competent to issue licence
to run the fair price shop, no any other subordinate
officer is empowered to issue the licence or grant the
permission to run the fair price shop, unless
specifically empowered by State Government. The
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revision filed by the petitioner for grant of licence
of shop Nos. 73,77 & 78 was heard and decided on 18th
August, 2004. In the said revision the officer of
State Government were party/ respondent. The
respondent No. 1 i.e. Ori. Plaintiff was not at all in
picture. Even in the second revision which was filed
by the petitioner society which was heard and same was
reserved for orders on 28th July, 2005, the respondent
No. 1 herein i.e. Ori. Plaintiff was not in picture at
all, and the State Government Officers who have
refused to grant permission in favour of the
petitioner to allot kerosene quota were party to the
said revision. Therefore, when both the revisions were
filed and heard by the State Government, the Minister
of Food and Civil Supplies Department, there was no
question of giving any hearing to the respondent No. 1
i.e. Ori. Plaintiff. The Counsel for the petitioner
Society strenuously urged that there is no legal right
in favour of the respondent No. 1 to run the fair
price shop. The permission given by the competent
authority dated 2nd August, 2005 is not valid. The
Civil Court has no jurisdiction to entertain the suit
filed by the respondent No. 1, her suit required to be
rejected.
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Upon perusal of the prayer in the suit filed
by the respondent No. 1, it is clear that the
respondent No. 1 has not challenged the order dated
18th August, 2004 passed by the Minister, Food and
Civil Supplies Department which has attained finality,
by which fair price shop No. 73 was allotted to the
petitioner society. The Writ petition filed by the
respondent No. 1, challenging the said order came to
be withdrawn.
13. Upon careful perusal of the prayer in the
suit, the Ori. Plaintiff has prayed that the
defendants be restrained from discontinuing the
business carried by the plaintiff of fair price shop
No. 73 without following due procedure under law by
issuing the perpetual injunction and declare the
orders dated 6th September, 2005, 8th September, 2005
and 22nd August, 2005 passed by the respondent Nos. 1
to 4 back and behind without hearing the plaintiff as
null and void. In fact, as stated earlier, the order
passed by the Minister, Food and Civil Supplies
Department, in revision granting the licence to run
the fair price shop No. 73 in favour of the petitioner
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has attained finality and said order is not the
subject matter of the suit. As stated here-in-above,
the licence is granted in favour of the petitioner
society to run the shop No. 73. Not only the licence
for food grains, but even Distribution Officer has
granted kerosene quota in favour of the petitioner
society. It is not in dispute that earlier the
petitioner society was running these fair price shop.
Therefore, the licence to run the shop No. 73 been
granted in favour of the petitioner society under
clause 3 of the said Order of 1975. In the said Order
the remedy is provided to the aggrieved person. The
licence is also issued under the said order.
Therefore, the said order of 1975 itself is self
contained Code which provides provision to grant
licence. It further provides remedy to the aggrieved
person. The said Order of 1975 is issued taking
recourse to Section 3 of the Essential Commodities
Act, 1955. Before said order came to be issued,
approval of the Central Government is also taken. The
issuance of licence to run the fair price shop is
completely controlled and regulated by the provisions
enumerated in the said Order of 1975 if any claim /
right is accrued by virtue of licence granted in
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favour of the party or refusal of licence remedy is
provided for redressal in the said Order of 1975
itself. In the present case, there was no licence
issued in favour of respondent No. 1. First time, a
letter dated 02nd August, 2005 issued by the
Distribution Officer, and the same was without any
authority under the said Order of 1975. The
petitioners were aggrieved by rejection of their claim
by the Collectorig and Commissioner, and therefore,
revisions came to be filed before the Minister, Food &
Civil Supplies Department, and the Minister, Food &
Civil Supplies Department allowed the revision filed
by the petitioners, and thereby licence came to be
issued in favour of the petitioner society to run the
fair price shop No. 73, 77 & 78. If at all the
respondent No. 1 was aggrieved, she had remedy under
the said Order of 1875 or file a writ petition. The
respondent No. 1 rightly understood and filed Writ
Petition, challenging the order dated 18th August, 2004
and thereafter, withdrawn the said Writ Petition
unconditionally.
14. The provisions of Section 9 of the Civil
Procedure Code, not only contemplates the express bar,
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but even implied bar to entertain the suit. At this
juncture it would be appropriate to refer to provision
under Section 6 of the Essential Commodities Act,
1955, the said Section reads thus :-
” Any order made under section 3 shall
have effect notwithstanding anything
inconsistent therewith contained in any
enactment other than this Act or anyinstrument having effect by virtue of any
enactment other than this Act”
Thus, Section 6 of the Essential Commodities
Act, 1955 has given overriding effect to the order
made under Section 3 of the Essential Commodities Act,
1955, and therefore, the said order of 1975 is having
overriding effect. Therefore, procedure provided under
the said order has to be followed by the aggrieved
person. The Apex Court in the case of ” Harishankar
Bagla and another V/s. The State of M.P.”,cited supra,
has considered the provisions of Section 3 and Section
6 of the Essential Supplies (Temporary Powers) Act. In
para No. 9 it is stated thus :
” The Legislature cannot delegate its
function of laying down legislative policy in
respect of a measure and in formulation as
rule of conduct.”
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In para No. 12 the Apex Court has considered
the provisions of the said Act and held thus :-
” Section 6 of the Act cited above
declares that an order made under Section 3
shall have effect notwithstanding anything
inconsistent therewith contained in anyenactment other than this Act. In other words
it declares that if there is any repugnancy
in an order made under Section 3 with theprovisions of any other enactment, then
notwithstanding
ig that inconsistency the
provisions of the Order will prevail in
preference to the provisions of other lawswhich are thus inconsistent with the
provisions of the order”
In the said Judgment the Hon’ble Supreme
Court held that provisions of Section 3,4 & 6 of the
Essential Supplies (Temporary Powers) Act, 1946 are
constitutional and the impugned order is also
constitutional. The Supreme Court has considered the
provisions of old Act. Even in the new Act i.e.
Essential Commodities Act, 1955, the similar
provisions are made in Section No. 3 and 6 of the said
Act. Therefore, redressal of any grievance by refusal
of licence or granting of licence in favour of other
party or for any other reason, the remedy is under the
said order of 1975. In case if the person is aggrieved
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by final decision under said order, only way is to
file Writ Petition, as understood by the respondent
No. 1, when she filed Writ Petition, challenging the
order dated 18th August, 2004, allowing the revision of
the petitioner granting licence to run the fair price
shop Nos. 73, 77 & 78. The said Writ Petition was
withdrawn by the respondent No. 1.
15. In my opinion, viewed from any angle and by
necessary implications impliedly the jurisdiction of
the Civil Court is barred. Section 9 of the Civil
Procedure Code contemplates not only express bar but
even implied bar to exercise the jurisdiction.
Therefore, there is no substance in the contention of
the learned Counsel appearing for the respondent No.
1 that there is no provision in the said order of 1975
or in the Essential Commodities Act, 1955 which bars
the jurisdiction of the Civil Court. The person
claiming legal right must first establish that he has
legal right in his /her favour. The respondent NO. 1
had no licence in her favour prior to granting licence
in favour of petitioner society.
16. In the light of aforesaid discussion, in the
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facts and circumstances of the case, this Civil
Revision Application succeeds. The impugned Judgment
and order dated 22nd December, 2005 below Exh. 30 in
Regular Civil Suit No. 653 of 2005 is quashed and set
aside. However, it is clarified that, respondent No.
1 is at liberty to take appropriate remedy as
available to her in accordance with law. Needless to
mention that if the respondent No. 1 files any
proceedings asig available under law, the Concerned
forum/Court will take into consideration the time
consumed in prosecuting the legal remedies and take
liberal view in interpreting the provisions of
Limitation Act. The Civil Revision Application is
allowed to the above extent. Rule made absolute in
above terms. The Civil Revision Application is allowed
and disposed of.
[S.S. SHINDE, J]
SDM*159.02 CRA
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