JUDGMENT
C.K. Thakker, C.J.
1. All the above three petitions have been filed by the petitioners being aggrieved and dissatisfied with the orders passed by the authorities in exercise of powers under the Maharashtra Scheduled Commodities Distribution (Second) Order, 1966.
2. To appreciate the controversy in the present petitions, few relevant facts in the first petition (Writ Petition No. 2956 of 2001) may be stated.
3. On June 1, 2000, the Controller of Rationing, Churchgate, Mumbai, respondent No. 3 herein, invited applications for allotment of a ration shop at Kandivali. The place earmarked was Lalajipada, Sanjay Nagar, Kandivali (W), Mumbai 400067. The Controller, in all, received 17 applications before the last date mentioned in the advertisement. The petitioner of Writ Petition No. 2956 of 2001 was one of them. The other two petitioners also applied for grant of licence. The Controller considered the cases of the applicants for grant of licence, and finally, by an Order dated August 14, 2001, observed that Satyabhama Jitbahaddur Pandey, applicant No. 9 and petitioner of Writ Petition No. 770 of 2002, had complied with all the terms and conditions of the advertisement, the premises proposed by her was at the centre and was more convenient to the card-holders. The Controller accordingly granted the licence in her favour, rejecting other applications.
4. It may be stated that according to the Controller, Mitradevi, petitioner of Writ Petition No. 2956 of 2001, who was at serial No. 5, had also complied with
necessary requirements, but Rajkumari Gupta, applicant No. 10 and petitioner of Writ Petition No. 74 of 2002, had not complied with the requirements. The Controller has considered materials and evidence produced before him, and observed that applicants No. 1, 3, 6, 7, 8, 10, 11, 13, 15, 16 and 17 had not submitted proof of payment of tax or rent to municipal authorities, whereas applicants No. 2, 4, 5 and 9 had complied with the necessary requirements. He was, however, of the opinion that the proposed premises of applicant No. 9, Satyabhama Jitbahaddur Pandey, was situate at center and was more convenient to card-holders, and, therefore, she was having priority to qualify for allotment of licence for ration shop. Accordingly, the order was passed granting licence to her.
5. Being aggrieved by the order of the Controller, eight persons, including the petitioner of Writ Petition No. 2956 of 2001 and petitioner of Writ Petition No. 74 of 2002, preferred revisions before the Hon’ble Minister for Food, Civil Supplies and Consumer Protection. The Hon’ble Minister considered the cases of the petitioners before him, as also the case of Satyabhama Pandey, in whose favour, licence was granted, and partly allowed the revision petitions. Vide an Order dated November 13, 2001, he held that the revision petition filed by Mitradevi (petitioner of Writ Petition No. 2956 of 2001) was liable to be rejected. Similarly, revision petitions of Rajkumari Gupta (petitioner of Writ Petition No. 74 of 2002) and Mumeshradevi Gupta were liable to be rejected. The remaining revision petitions were allowed. Resultantly, the units available to Satyabhama Pandey, petitioner of Writ Petition No. 770 of 2002, came to be reduced, as the units were to be divided between Satyabhama Pandey and applicants No. 2 to 6 equally.
6. Being aggrieved by the order passed by the Hon’ble Minister rejecting revision petitions of Mitradevi Gupta and Rajkumari Gupta, they have approached this Court by filing the petitions. Similarly, being aggrieved by that part of the order under which the units were reduced, Satyabhama Pandey to whom licence was granted by the Controller has filed Writ Petition No. 770 of 2002.
7. We have heard the learned counsel for the parties.
8. The learned counsel for the petitioners whose applications were rejected and whose revision petitions were dismissed, contended that the authorities below have not considered the relevant provisions as also guidelines prescribed by the Government for grant of licence to run a ration shop. It was also submitted that the decision of this Court in Writ Petition No. 1507 of 2000 dated April 10, 2000 and a consequential Resolution issued by the Government on June 9, 2000 have not been followed. Priority which ought to have been given has not been given. It was also submitted that Satyabhama Pandey was ineligible and licence could not have been granted to her. The action has been taken with a view to favour ‘fortunate few’ and it is, therefore, mala fide and in colourable exercise of powers, which deserves interference. No sufficient, units are now available as per the Government Resolution issued in pursuance of a decision of this Court. On all these grounds, the counsel submitted that the petitions deserve to be allowed, the orders passed by the respondents are liable to be set aside, by directing the
Controller to re-consider the cases of the petitioners and take an appropriate decision afresh in accordance with law.
9. The counsel for the petitioner in Writ Petition No. 770 of 2002 supported the order passed by the Controller, and submitted that the said order was in accordance with law and keeping in mind all the facts and circumstances in their entirety, a decision was taken by him. The said decision could not have been interfered with by the Hon’ble Minister in exercise of revisional jurisdiction. To that extent, therefore, the order passed by the revisional authority deserves interference. It was, therefore, prayed that the petition be allowed by setting aside the order passed by the Hon’ble Minister and restoring the order passed by the Controller.
10. The learned Assistant Government Pleader supported the order passed by the Hon’ble Minister. He submitted that the Hon’ble Minister, in exercise of revisional jurisdiction, considered the case of all persons who had grievance against the order passed by the Controller, and by applying the principles of justice, equity and good conscience, made equitable distribution by allowing revisions filed by some of the petitioners, and the action does not deserve interference.
11. Having heard the learned counsel for the parties, in our opinion, the petitions deserve to be allowed. So far as the order passed by the Controller is concerned, he held that some of the applicants had complied with necessary requirements. Thus, they were eligible. It is, no doubt, true that he had observed in the order that applicant No. 10 (petitioner of Writ Petition No. 74 of 2002) was not eligible, as substantial proof regarding payment of tax or rent to the Municipal authorities or Government showing the legality of possession of premises had not been submitted. But it was urged by the learned counsel for the petitioner that in the application itself, the applicant had stated that the zopadpatty is in the name of the applicant and the applicant was having Gumastha licence. It was also stated that the construction of the premises was made in 1985, and the Government had given protection to the zopadpattis constructed till 1995. It, therefore, could not be said that she was in unauthorised occupation. Regarding her economic and financial condition, it was stated that the applicant had submitted certificate from Jankalyan Sahakari Bank.
12. So far as the petitioner of Writ Petition No. 2956 of 2001 is concerned, it was not in dispute that she was eligible. The ground which weighed with the Controller was that the proposed premises of Satyabhama Pandey, applicant No. 9, were at centre and more convenient to the cardholders, and thus, she was having priority for allotment of shop.
13. It was seriously contended on behalf of the petitioners of Writ Petitions No. 2956 of 2001 and 74 of 2002 that it was merely bald statement and there was nothing on record to show as to on what basis such observation was made by the Controller and how priority was given to applicant No. 9 on the ground of location of premises. There was nothing on record to show as to how other premises were not convenient or centrally located. On the contrary, at the time of hearing, it was sought to be suggested by the learned counsel for the petitioners of Writ Petitions No. 2956 of 2001 and 74 of 2002 that the premises which belonged to applicant No. 9 could not be said to be centrally situated.
14. In our opinion, in view of serious contest between the parties, it would not be appropriate for us to go into and decide the question, which can be done by the authorities. It would not be appropriate for us to undertake that task in exercise of powers under Article 226/227 of the Constitution.
15. Regarding the order passed by the Hon’ble Minister, in our opinion, the contentions raised by the petitioners of Writ Petitions No. 2956 of 2001 and 74 of 2002 are well-founded, and must be accepted. Virtually, there are no reasons and grounds which weighed with the Hon’ble Minister in passing the impugned order. In the initial part of the order, the Hon’ble Minister has narrated the facts of the case and the applications, made by the petitioners who had filed revision petitions. It is only in paragraph 6 of the order that the Hon’ble Minister has stated that, in all, 17 applicants, had made applications and since applicants 2 to 6 were within the declared boundary and were convenient to the card-holders as well as to the transporters, it would be appropriate if those eligible applicants could also be granted licence along with applicant No. 9 in whose favour licence was granted. It was also observed by the Hon’ble Minister that the shop premises shown by Mitradevi (petitioner of Writ Petition No. 2956 of 2001) was not convenient to card-holders. The above statement was strongly objected by learned counsel appearing for the said applicant stating therein that the statement was not based on any material or evidence on record. On the contrary, according to the finding recorded by the Competent Authority i.e. Controller, Mitradevi was eligible, but the Controller had given priority to applicant No. 9. The order passed by the Hon’ble Minister, therefore, cannot be said to be in accordance with law.
16. The other objection raised by all the petitioners is also well-founded that the order passed by the Hon’ble Minister is not in consonance with the order passed by this Court in Writ Petition No. 1507 of 2000 and a consequential Resolution issued by the Government on June 9, 2000. In past, when such question came up for consideration before this Court a Division Bench had observed that if there is substantial reduction of units available to a person to whom licence is granted, the viability of the business itself would be seriously prejudiced. A suggestion was, therefore, made by the Court to the learned Additional Government Pleader appearing for the State that there should be minimum number of units required to be allotted to a ration shop. Since it was within the jurisdiction of the authorities, the Court directed that a suitable policy would be framed by the Government within the stipulated period under which minimum number of units that should be allocated to ration shop operating in the city would be decided and would be implemented in future.
17. The State, in accordance with the decision of the Division Bench of this Court and the directions thereunder, issued a Resolution on June 9, 2000, wherein it was decided to allot certain units in favour of co-operative societies as well as to individual licence holders. Admittedly, the order of the Hon’ble Minister is not in conformity with the above Resolution and guidelines. On that ground also, the order passed by the Hon’ble Minister deserves to be quashed.
18. It was urged on behalf of the petitioner of Writ Petition No. 770 of 2002 that the Maharashtra Foodgrains Rationing (Second) Order, 1966 had been amended in concurrence with the Central Government and priority has been
fixed. According to the petitioner, she is covered by Item No. 3 (Scheduled Caste). Her case ought to have been dealt with accordingly. Her grievance, however, is that Circular (Exhibit ‘C’) was issued by the State Government in 1999 without concurrence of the Central Government changing priorities. Exhibit ‘C’, therefore, cannot be said to be legal or lawful and cannot be implemented. The petitioner is entitled as per Rationing Order, 1966.
19. We may, however, observe that as already stated hereinabove, neither the Controller nor the Hon’ble Minister had decided the case on the basis of priorities. Considering eligibility and convenience to card-holders, decision has been taken. We have held that the orders passed by both the authorities are liable to be set aside and accordingly they are set aside. In the circumstances, we express no opinion on the contention raised by the petitioner of Writ Petition No. 770 of 2002. It is open to her to raise the said contention before the Controller. It is open to other applicants to contest or support the said submission, the Controller shall take an appropriate decision on that point also.
20. It was also contended that the advertisement was issued on June 1, 2000 whereas the Government Resolution sought to be considered and applied was dated June 9, 2000. The said circular, hence, has no application.
21. We see no substance in the above contention of the counsel. The first order was passed by the Controller on August 14, 2001 i.e. after the circular of June 9, 2000. It was, therefore, obligatory on him to consider the same and accordingly, he had taken a decision which cannot be termed as unlawful. Regarding validity or otherwise of the circular, we have not stated anything.
22. Finally, it was urged that the order had already been implemented and the business had already started from December 1, 2001. This Court, on that ground also, may not interfere at this stage.
23. We are unable to uphold the contention. If the action is not in consonance with law, it has to be set aside. Moreover, the advertisement was for one shop only and the allotment has to be made as per the said advertisement. There is, therefore, no question of equity in the matter.
24. For the reasons aforesaid, all the petitions deserve to be allowed and accordingly they are allowed. The orders passed by the Controller of Rationing, Churchgate, Mumbai, respondent No. 3 herein, dated August 14, 2001 and by the Hon’ble Minister, Food, Civil Supplies and Consumer Protection, dated November 13, 2001 are hereby set aside. The matters are remanded to the first authority i.e., Controller of Rationing, respondent No. 3 herein, to re-consider in the light of the facts before him and keeping in mind the Government Resolution and observations made by us hereinabove. Since the cases pertain to grant of licence of ration shop, it is directed that respondent No. 3 shall decide the matters expeditiously, preferably within three months from today. We keep all questions open.
25. Petitions are accordingly allowed to the extent indicated above. In the facts and circumstances, however, there shall be no order as to costs.