{"id":181263,"date":"2010-10-28T00:00:00","date_gmt":"2010-10-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nandbodhi-magaswargiya-grahak-vs-food-on-28-october-2010"},"modified":"2015-11-14T03:47:20","modified_gmt":"2015-11-13T22:17:20","slug":"nandbodhi-magaswargiya-grahak-vs-food-on-28-october-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nandbodhi-magaswargiya-grahak-vs-food-on-28-october-2010","title":{"rendered":"Nandbodhi Magaswargiya Grahak vs Food on 28 October, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Nandbodhi Magaswargiya Grahak vs Food on 28 October, 2010<\/div>\n
Bench: S. S. Shinde<\/div>\n
                               1\n\n\n          IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                 \n                     BENCH AT AURANGABAD.\n\n\n\n\n                                         \n              CIVIL REVISION APPLICATION No. 10 OF 2006\n\n    Nandbodhi Magaswargiya Grahak\n    Sahakari Sanstha, Maryadit, through\n\n\n\n\n                                        \n    its Chairman, Uttamrao S\/o Mukundrao\n    Shinde, Age 64 years, Occu. R\/o\n    plot No. 1148, Sai Nagar, N-6,\n    Cidco, Aurangabad.                           ...PETITIONER\n\n\n\n\n                            \n                            VERSUS\n\n    1]\n                 \n         Leelabai W\/o Sukhdeo Palaskar,\n         Age 45 years, Occu. Household,\n         r\/o House No. 36, N-12, Hudco,\n                \n         Aurangabad.\n\n    2]   District Supply Officer,\n         Collector office, Aurangabad.\n      \n\n    3]   Food Grains Distribution Officer,\n         Collector office, Aurangabad.\n   \n\n\n\n    4]   Additional Collector,\n         Collector office, Aurangabad.\n\n    5]   State of Maharashtra\n\n\n\n\n\n         (Food, Civil Supplies and\n         Consumer protection Department,\n         through Collector of District\n         Aurangabad, Collector office,\n         Aurangabad.                    ..RESPONDENTS\n\n\n\n\n\n                              ...\n\n    Mr. P.S. Dighe, Advocate for Petitioner\n    Mr.S.L. Jondhale, Advocate for Respondent No. 1\n    Mr.V.H. Dighe, A.G.P. for respondent Nos. 2 to 5\n\n                                   CORAM :- S.S. SHINDE, J.\n\n              JUDGEMENT RESERVED ON    : 18th October, 2010\n            JUDGMENT PRONOUNCED ON     : 28th October, 2010\n\n\n\n\n                                         ::: Downloaded on - 09\/06\/2013 16:35:20 :::\n                                             2\n\n\n\n\n                                                                             \n    JUDGMENT:\n<\/pre>\n
                 This    Civil          Revision   Application          is    filed,<\/p>\n
    challenging the Judgment and Order dated 22th December,<\/p>\n
    2005    passed      by     the       learned    Civil       Judge,        Senior<\/p>\n
    Division, Aurangabad Dist. Aurangabad below Exh. 30 in<\/p>\n
    Regular Civil Suit No. 653 of 2005. The petitioner<\/p>\n
    herein is the original defendant No. 5 and respondent<\/p>\n
    No. 1 is original plaintiff in Regular civil Suit No.<\/p>\n
    653 of 2005. The respondent Nos. 2 to 4 are original<\/p>\n
    defendant Nos. 2 to 4 in the said suit.\n<\/p>\n
    2.            The plaintiff filed the suit with following<\/p>\n
    prayer :\n<\/p>\n
           “A]   The    Suit       of    the    plaintiff      may     kindly        be
\n           decreed with costs.\n<\/p><\/blockquote>\n
           B]    That,       the     defendants      be     restrained            from
\n           discontinuing           the     business        carried         by       the
\n           plaintiff     of     fair       price    shop    NO.      73      without<\/p>\n
           following     due       procedure       under    by      issuing         the
\n           perpetual injunction and declare the orders dated
\n           6\/09\/2005, 8\/09\/2005 and 22\/08\/2005 passed by the
\n           defendant Nos. 1 to 4 back and behind without
\n           hearing the plaintiff               as null and void.”\n<\/p><\/blockquote>\n
                  In the said Regular Civil Suit petitioner<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 16:35:20 :::<\/span>
\n                                           3<\/span><\/p>\n
    herein filed application under Section 9-A of Civil<\/p>\n
    Procedure      Code,    and      prayed         for     framing        issue       of<\/p>\n
    jurisdiction      under      Section       59-A       of    Civil      Procedure<\/p>\n
    Code and it be tried first. The original plaintiff<\/p>\n
    filed say on the said application stating that the<\/p>\n
    application      is     misconceived.            The       remedy      available<\/p>\n
    under    the    Act     will      operate         as       a     bar      to      the<\/p>\n
    Jurisdiction      of    the      Civil         Court,       therefore,          this<\/p>\n
    application is not tenable.\n<\/p><\/blockquote>\n
                       ig                          The learned Civil Judge,\n\n    Senior   Division,       Aurangabad by            his order            dated 19th\n                     \n    October,    2005       granted       application           and      framed        the\n\n    preliminary issue           thus :\n\n                \"          Whether this Court has jurisdiction to\n      \n\n\n                try       the     suit        in     view       of      Maharashtra\n   \n\n\n\n                Scheduled           Commodities                (Regulations              &\n                Distribution) Order 1975?\"\n\n\n\n\n\n<\/pre>\n
                The said application filed by the petitioner<\/p>\n
     herein was exhibited at Exh. 30. The learned Civil<\/p>\n
     Judge, Senior Division, Aurangabad by his order dated<\/p>\n
     22th December, 2005 held that there is no express bar<\/p>\n
     under Maharashtra Scheduled Commodities (Regulations &<\/p>\n
     Distribution) Order 1975, to oust the jurisdiction of<\/p>\n
     Civil Court. Being aggrieved by the said order dated<\/p>\n
     22th December, 2005, this Civil Revision Application is<\/p>\n
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\n                                            4<\/span><\/p>\n
     filed by the original defendant No. 1.\n<\/p><\/blockquote>\n
    3.                 The    learned      counsel         appearing           for      the<\/p>\n
    revision petitioner submitted that licence bearing No.<\/p>\n
    73, in respect of fair price shop and kerosene is<\/p>\n
    given in favour of petitioner society and petitioner<\/p>\n
    society is running the same in the Aurangabad city. In<\/p>\n
    the    year    1982,         the     petitioner          society           went      in<\/p>\n
    liquidation        and
\n                         ig   administrator         was       appointed          by     the<\/p>\n
    Assistant           Registrar              Co-operative                Societies,<\/p>\n
    Aurangabad, and the shop Nos. 73,77 and 78 were given<\/p>\n
    to the employees of the petitioner society for running<\/p>\n
    the same. Shop No. 73 was run by the husband of the<\/p>\n
    respondent No. 1, namely Sukhdeo Palaskar who was the<\/p>\n
    salesman      of    the    petitioner          society.         In     2003,        the<\/p>\n
    petitioner         society      came      up   from       liquidation.              The<\/p>\n
    application was filed with the authorities for handing<\/p>\n
    over   the    fair       price     shop    Nos.      73,77       &    78     to    the<\/p>\n
    society,      as    it    was      earlier     run      by     the     petitioner<\/p>\n
    society.\n<\/p>\n
                       On 16th August, 2003, the husband of the<\/p>\n
    respondent No. 1, running the fair price shop No. 73,<\/p>\n
    expired.       On 7th November, 2003, the District Supply<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 16:35:20 :::<\/span>
\n                                         5<\/span><\/p>\n
    Officer, Aurangabad rejected the application of the<\/p>\n
    petitioner for handing over the said shops No. 73,77 &<\/p>\n
    78    in   favour      of     the   petitioner          society.           Being<\/p>\n
    aggrieved,     petitioner       society      filed     revision         before<\/p>\n
    the State Government, challenging the letter dated 7th<\/p>\n
    November, 2003 issued by the District Supply Officer,<\/p>\n
    Aurangabad.      The        Minister,     Food,        Civil         Supplies<\/p>\n
    Department, Mantralaya, Mumbai, on 18th August, 2004<\/p>\n
    allowed    the   said
\n                      ig        revision    filed     by     the     petitioner<\/p>\n
    society,    thereby     directing       to    allot      the     shops        No.<\/p>\n
    73,77 & 78 to the petitioner society.\n<\/p>\n
                     It is the case of the petitioner that on<\/p>\n
    04th February, 2005, the respondent No. 1, one of the<\/p>\n
    two    wives     of    said     Shri      Sukhdeo        Palaskar           made<\/p>\n
    application to District Supply Officer, Aurangabad to<\/p>\n
    give her licence of shop No. 73 being legal heir of<\/p>\n
    Sukhdeo Palaskar.           On 27th August, 2005, the District<\/p>\n
    Supply     Officer,     Aurangabad        issued       letter         to      the<\/p>\n
    Distribution Officer to take action on the application<\/p>\n
    given by respondent No. 1 on 9th June, 2005.\n<\/p>\n
                      The District Supply Officer, Aurangabad,<\/p>\n
    refused to allot the kerosene quota to the petitioner<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 16:35:20 :::<\/span>
\n                                            6<\/span><\/p>\n
    society, and therefore, the revision was filed before<\/p>\n
    the    State   Government         by   the      petitioner.             Though       the<\/p>\n
    order dated 18th August, 2004, was passed by the State<\/p>\n
    Government      giving       shops     No.       73,      77      &     78    to     the<\/p>\n
    petitioner society, but as the quota of kerosene was<\/p>\n
    not allotted the petitioner society approached to the<\/p>\n
    State Government by filing revision and same was heard<\/p>\n
    by State Government on 14th July, 2005 and same was<\/p>\n
    reserved for orders.\n<\/p>\n
                          According        to       the       Counsel            for     the\n\n    petitioner,         the     Distribution           Officer            who     had     no\n\n    authority      to    take    decision        for      allotting          the       shop,\n      \n\n\n    issued    notice      of    hearing        to    the     respondent           No.     1,\n   \n\n\n\n<\/pre>\n
    directing to remain present on 28th July, 2005.                                      The<\/p>\n
    Distribution Officer without any authority in law and<\/p>\n
    without any powers and without taking permission of<\/p>\n
    the higher authorities, issued a letter in favour of<\/p>\n
    respondent No. 1, directing to run the said fair price<\/p>\n
    shop     No.   73     of    which      the      licence           was       with     the<\/p>\n
    petitioner society.              On 18th August, 2005, the superior<\/p>\n
    authority of the Distribution Officer, the Additional<\/p>\n
    Collector issued letter to the Distribution Officer,<\/p>\n
    Aurangabad,         that    he   had   no       powers       to       issue    letter<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 16:35:20 :::<\/span>
\n                                                 7<\/span><\/p>\n
    dated 2nd August, 2005 in favour of respondent No. 1.\n<\/p>\n
    The learned Counsel further submitted                              that on 22th<\/p>\n
    August,     2005,     the    revision           filed    by     the    petitioner<\/p>\n
    society came to be allowed, thereby directing to allot<\/p>\n
    the     kerosene      quota       in        favour      of      the    petitioner<\/p>\n
    society. On 6th September, 2005, the District Supply<\/p>\n
    Officer, Aurangabad immediately in view of the letter<\/p>\n
    issued by the Additional Collector stopped the supply<\/p>\n
    of the essential commodities to the respondent No. 1.\n<\/p>\n
    On    8th   September,       2005      the       District       Supply      Officer<\/p>\n
    issued letter to the Distribution Officer referring<\/p>\n
    the orders dated 18th August, 2004 and 22th August, 2005<\/p>\n
    passed by the State Government and directed to issue<\/p>\n
    allocation in favour of the petitioner society.                                     The<\/p>\n
    respondent      No.    1     who       is       original      plaintiff         filed<\/p>\n
    Regular Civil Suit No. 635 of 2005 before Civil Judge,<\/p>\n
    Senior Division, Aurangabad for perpetual injunction<\/p>\n
    against shop No. 73 and declaration challenging the<\/p>\n
    letters dated 6th September, 2005, 8th September, 2005<\/p>\n
    and order dated 22th August, 2005 which are mentioned<\/p>\n
    here-in-above.         The petitioner filed application Exh.\n<\/p>\n
    30 for framing preliminary issue of Jurisdiction under<\/p>\n
    Section 9-A of Civil Procedure Code.                            The Civil Court<\/p>\n
    held    that   Court        has    jurisdiction            to    entertain          the<\/p>\n
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\n                                              8<\/span><\/p>\n
    suit, and there is no express bar in the Maharashtra<\/p>\n
    Scheduled      Commodities         (Regulations                &    Distribution)<\/p>\n
    Order 1975.\n<\/p>\n
    4.                   The   learned       Counsel         appearing         for      the<\/p>\n
    petitioner           submits       that        Maharashtra                Scheduled<\/p>\n
    Commodities       (Regulations          &    Distribution)               Order    1975<\/p>\n
    (Here-in-after referred as ‘said order of 1975’) has<\/p>\n
    been    enacted       as
\n                          ig    per    Section           3    of       the    Essential<\/p>\n
    Commodities       Act,     1955.        Clause       3    of       the    Essential<\/p>\n
    Commodities Act, 1955 gives powers to the authorities<\/p>\n
    for     issuing       necessary         licence          \/authorization             for<\/p>\n
    running fair price shop. Clause 24 of the said order<\/p>\n
    provides       the     machinery        to    the         aggrieved         person,<\/p>\n
    approaching the Commissioner or the State Government<\/p>\n
    against the order passed by the Collector. Therefore,<\/p>\n
    according to the learned counsel for the petitioner,<\/p>\n
    the respondent No. 1 was having remedy to approach the<\/p>\n
    State Government under clause 24 of the said order of<\/p>\n
    1975. As the machinery provided under the said order<\/p>\n
    of    1975,    therefore,         the    jurisdiction              of    the     Civil<\/p>\n
    Court     is    impliedly         barred.        The          learned       Counsel<\/p>\n
    appearing for the petitioner invited my attention to<\/p>\n
    the     provisions         of     Section        6       of        the    Essential<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 16:35:20 :::<\/span>
\n                                             9<\/span><\/p>\n
    Commodities Act, 1955, and submitted that as per said<\/p>\n
    section     the        Order     of     1975    is       having         overriding<\/p>\n
    effect, and therefore, procedure provided under the<\/p>\n
    said order has to be followed by the aggrieved person.\n<\/p>\n
    The    learned     Counsel       invited       my        attention         to      the<\/p>\n
    reported Judgment in case of “Harishankar Bagla and<\/p>\n
    another V\/s. State of M.P., reported in AIR 1954 S.C.\n<\/p>\n
    465″ and submitted that, it has been held that the<\/p>\n
    provisions of the order made under section 3 of the<\/p>\n
    Essential       Commodities           Act,    1955        will         prevail      in<\/p>\n
    preference to the provisions of other laws. It has<\/p>\n
    been also further held that as soon as the order comes<\/p>\n
    into    force that will have effect not withstanding any<\/p>\n
    inconsistency          therewith       contained         in       any    enactment<\/p>\n
    other than this Act.           It is further submitted that the<\/p>\n
    said    order     of    1975     is    created       by       a    statute       i.e.<\/p>\n
    Essential    Commodities          Act,       1955    and          it    provides      a<\/p>\n
    machinery    for       the   enforcement        of       the       right     giving<\/p>\n
    remedy and therefore, the Civil Court’s Jurisdiction<\/p>\n
    is impliedly barred. The learned Counsel in support of<\/p>\n
    his    contention       placed     reliance         on    the            following<\/p>\n
    Judgments :\n<\/p>\n
           1]   “Raja Ram Kumar Bhargava (dead) by LRs V\/s.
\n           Union of India, reported in AIR, 1988, S.C. 752”\n<\/p><\/blockquote>\n
                                                        ::: Downloaded on – 09\/06\/2013 16:35:20 :::<\/span>
\n                                                10<\/span><\/p>\n
           and more particularly Head Note<\/p>\n
           2]    Bharat Prasad and others V\/s. State of Bihar<\/p>\n
           & others, reported in (2009)6, SCC, 698.\n<\/p><\/blockquote>\n
           3]    Music           Choice         India         Pvt.          Ltd.          V\/s.\n<\/p><\/blockquote>\n
           Phonographic           Performance              Ltd.,         reported           in
\n           2009(2), Mh.L.J.651.\n<\/p><\/blockquote>\n
           4]    State       of    A.P.        V\/s.        Majeti       Laxmi        Kantha<\/p>\n
           Rao(D) by L.R.s. & others, reported in AIR, 2000,
\n           SC 2220.<\/p><\/blockquote>\n
           It is further submitted that the respondent No. 1<\/p>\n
    did not have legal right to claim the principles of<\/p>\n
    natural justice, as no licence or authorisation has<\/p>\n
    been   given      in    favour        of        respondent        No.      1    by     the<\/p>\n
    authorities for running the fair price shop No. 73, as<\/p>\n
    the licence is with the petitioner society since the<\/p>\n
    year 1982, and the same has been renewed from time to<\/p>\n
    time. The respondent No. 1 is claiming right to heard<\/p>\n
    only on the basis of letter dated 2nd August, 2005<\/p>\n
    issued      by    the    Distribution                 Officer,        who       has     no<\/p>\n
    authority        to   issue    such        letter       and      which         has    been<\/p>\n
    informed by the Additional Collector immediately on<\/p>\n
    18th August, 2005, and accordingly the supply of food<\/p>\n
    grains was immediately stopped on 6th September, 2009.\n<\/p>\n
    According        to    the    counsel           for    the      petitioner,            the<\/p>\n
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\n                                           11<\/span><\/p>\n
    revision     which     was    filed    by     the    petitioner          society<\/p>\n
    before     the   State      Government       in     July,     2005      and      the<\/p>\n
    letter     issued      by    the    Distribution          Officer         to     the<\/p>\n
    respondent No. 1 is dated 2nd August, 2005 i.e. after<\/p>\n
    filing of revision and therefore, the respondent No. 1<\/p>\n
    cannot     claim     any    right    to     be    heard     before       passing<\/p>\n
    order on 22nd August, 2005.                The revision filed by the<\/p>\n
    petitioner society was heard on 14th July, 2005 when at<\/p>\n
    the relevant time there was no document in favour of<\/p>\n
    respondent       No.    1    to     claim     principles          of     natural<\/p>\n
    justice before the State Government.\n<\/p>\n
                         The     learned       Counsel    further          submitted<\/p>\n
    that the husband of respondent No. 1 was the salesman<\/p>\n
    of   the   petitioner        society,       and    therefore,          the     said<\/p>\n
    shop   No.    73     was    given    to     him     for   running         as     the<\/p>\n
    petitioner society went                into liquidation. According<\/p>\n
    to the Counsel, the State Government has passed order<\/p>\n
    dated 18th August, 2004 in favour of the petitioner<\/p>\n
    society allotting the said shops No. 73,77 & 78 and as<\/p>\n
    the kerosene quota was not allotted to the petitioner<\/p>\n
    society      again     revision      was     filed     before       the      State<\/p>\n
    Government, and the order dated 22nd August, 2005 was<\/p>\n
    passed in favour of the petitioner society, thereby<\/p>\n
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\n                                        12<\/span><\/p>\n
    directing to allot kerosene quota to the petitioner<\/p>\n
    society. Therefore, learned Counsel for the petitioner<\/p>\n
    society    would    submit   that       the   principle        of    natural<\/p>\n
    justice can be claimed by a person who had some right<\/p>\n
    in his favour, at the time of filing first revision<\/p>\n
    and second revision by the petitioner society before<\/p>\n
    the State Government. The respondent No. 1 is claiming<\/p>\n
    the right to run the business of fair price shop which<\/p>\n
    can be granted under the provisions of the said order<\/p>\n
    of 1975 and not by the Civil Court as will be evident<\/p>\n
    from the prayers made by the respondent No. 1 in her<\/p>\n
    suit.   Therefore,       learned    Counsel      appearing          for      the<\/p>\n
    petitioner       would   submit     that      this     Civil        Revision<\/p>\n
    Application deserves to be allowed.\n<\/p>\n
    5.          On the other hand, learned Counsel appearing<\/p>\n
    for the respondent No. 1, has invited my attention to<\/p>\n
    the pleadings in the plaint and reasons recorded by<\/p>\n
    the Trial Court in its impugned Judgment and order and<\/p>\n
    submitted that jurisdiction of the Civil Court is not<\/p>\n
    expressly barred by the said Order of 1975. There is<\/p>\n
    no any specific provision in the said Order of 1975,<\/p>\n
    which     bars    jurisdiction      of    the     Civil       Court.         The<\/p>\n
    learned Counsel submitted that the order passed by the<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 16:35:20 :::<\/span>
\n                                          13<\/span><\/p>\n
    Minister, Food Civil Supplies, in revision is without<\/p>\n
    hearing      the    respondent       No.        1.        Since,     1984       the<\/p>\n
    respondent No. 1 was carrying business of fair price<\/p>\n
    shop.   In    the   year     2003,        the   fair        price    shop       was<\/p>\n
    transferred in the name of respondent No. 1.                                    The<\/p>\n
    order passed in the revision is behind back of the<\/p>\n
    respondent No. 1, and therefore, the order which is<\/p>\n
    passed without hearing to the respondent No. 1, can be<\/p>\n
    very well challenged by way of filing Civil Suit and<\/p>\n
    jurisdiction of the Civil Court is not barred in that<\/p>\n
    case. The learned Counsel further submitted that, on<\/p>\n
    2nd August, 2005 the fair price shop was allotted to<\/p>\n
    the respondent No. 1.           The learned Counsel submitted<\/p>\n
    that nothing has been stated in the said Order of<\/p>\n
    1975, which bars jurisdiction of the Civil Court. The<\/p>\n
    learned Counsel further invited my attention to the<\/p>\n
    pleadings      in    the     plaint,        annexures             thereto       and<\/p>\n
    original record and submitted that the impugned order<\/p>\n
    passed by the Civil Court is perfectly sustainable and<\/p>\n
    no   interference       is    warranted              in     the     revisional<\/p>\n
    jurisdiction by this Court.\n<\/p>\n
    6.           The learned Counsel further submitted that<\/p>\n
    the husband was carrying and conducting the business<\/p>\n
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\n                                       14<\/span><\/p>\n
    of the fair price shop No. 73, who had got licence<\/p>\n
    Parwana   No.    06955    dated    17-08-1984,          the      said       was<\/p>\n
    renewed   time    to    time.   That,       while     conducting            and<\/p>\n
    carrying business of fair price shop NO. 73, he has<\/p>\n
    expired on 16-08-2003. The District Supply Officer,<\/p>\n
    Aurangabad has ordered to Food Distribution Officer,<\/p>\n
    Aurangabad for making enquiry and to issue Licence.\n<\/p>\n
    Thus, enquiry was carried, statements were recorded.\n<\/p>\n
    Thereafter,     onig 02-08-2005,        a   authority        letter         cum<\/p>\n
    order has issued in favour of respondent No. 1 to<\/p>\n
    conduct and carry business of fair price shop NO. 73.\n<\/p>\n
    This Hon’ble Court pleased to direct the petitioner to<\/p>\n
    produce a copy of revision petition which was filed<\/p>\n
    before    learned      Minister        of   Food     Civil         Supplies<\/p>\n
    Department,     Mantralaya,       Mumbai.     But     the      petitioner<\/p>\n
    failed to comply of direction of this Hon’ble Court.\n<\/p>\n
    The petitioner has made a capital that the learned<\/p>\n
    Minister has issued order on 18-08-2004 in regards to<\/p>\n
    fair price shops Nos. 73,77 & 78. But the said order<\/p>\n
    has been challenged by the shop owner of fair price<\/p>\n
    shop No. 77 by filing a R.C.S. No. 238\/2002. By that<\/p>\n
    order petitioner has been restrained to take shops by<\/p>\n
    Ld. Civil Judge Senior Division, Aurangabad vide its<\/p>\n
    order dated 04-02-2005. The said order is on record.\n<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 16:35:21 :::<\/span>
\n                                           15<\/span><\/p>\n
    The learned Minister has passed order behind back of<\/p>\n
    this respondent NO. 1 Leelabai Palaskar, which is bad<\/p>\n
    in law. The said is not binding on her.\n<\/p>\n
    7.          The        learned      Counsel    in     support         of      his<\/p>\n
    contention placed reliance on the reported judgment,<\/p>\n
    in a case of “Rajasthan S.R.T.C. & others V\/s. Mohar<\/p>\n
    Singh, reported in 2008 AIR SCW 3567” and submitted<\/p>\n
    that   order      of
\n                       ig   Civil       Court   declaring       dismissal          of<\/p>\n
    service of bus driver of State Transport Corporation<\/p>\n
    as being passed in violation of principles of natural<\/p>\n
    justice cannot be said to be without jurisdiction. In<\/p>\n
    the event, it is found that the action on the part of<\/p>\n
    a statute or statutory rules, the Civil Court would<\/p>\n
    have the jurisdiction to give directions.                       The learned<\/p>\n
    Counsel     further       placed      reliance      on    the      following<\/p>\n
    reported     Judgments         of     the   Supreme      Court        \/     this<\/p>\n
    Court :-\n<\/p>\n
           1]      B. Nagabhushanam V\/s. State of Karnataka,<\/p>\n
           reported in 2008, AIR, SCW 3573.\n<\/p><\/blockquote>\n
           2]   Laxminarayan            Ramdayal   Gutani      Vs.     State       of
\n           Maharashtra, reported in AIR 1983 Bombay 232 more
\n           particularly in para No. 10 of the said Judgment.\n<\/p><\/blockquote>\n
           3]   Rasta       Peth     Education       Society,        Pune       V\/s.\n<\/p><\/blockquote>\n
                                                   ::: Downloaded on – 09\/06\/2013 16:35:21 :::<\/span>
\n                                        16<\/span><\/p>\n
           Pethkar      Udhao    Bhimashankar,      reported          in     1994,<\/p>\n
           Mh.L.J. 725.\n<\/p><\/blockquote>\n
           4]        Madhav Kesu Khuspe V\/s. Sundarabai Mugutrao
\n           Phadatare since deceased by heirs Krishna Dagdu
\n           Khuspe and others, reported in 1978, Mh.L.J. 289.<\/p><\/blockquote>\n
                         The learned Counsel submitted that it<\/p>\n
    cannot      be    countenanced    that    for     all      purposes          the<\/p>\n
    jurisdiction of the Civil Court is taken away. The<\/p>\n
    power of the Civil Court to examine cases where the<\/p>\n
    provisions of the Act have not been complied with or<\/p>\n
    the   Statutory       Tribunal   has    not   acted       in    conformity<\/p>\n
    with the principles of judicial procedure or natural<\/p>\n
    justice      remains        unaffected.   The       learned            Counsel<\/p>\n
    further placed reliance on reported Judgment of this<\/p>\n
    Court, in a case of “Baburao Anant Dhage & others V\/s.\n<\/p>\n
    Jagannath Gopala Karale, reported in 1999(3), ALL MR<\/p>\n
    414″ and submitted that whenever the challenge to the<\/p>\n
    proceedings or the document is based on fraud, the<\/p>\n
    fraud being a complicated question affecting the civil<\/p>\n
    rights of the parties, it is a matter to be dealt with<\/p>\n
    by    the   Civil     Courts.      Therefore,         learned          counsel<\/p>\n
    relying on various Judgments of the Supreme Court and<\/p>\n
    this Court would submit that the impugned Judgment and<\/p>\n
    Order passed by the Trial Court needs no interference<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 16:35:21 :::<\/span>
\n                                              17<\/span><\/p>\n
    at    the   hands    of     this    Court.          The     learned        Counsel<\/p>\n
    further submitted that even clause 24 of of the said<\/p>\n
    Order   of    1975    contemplates            hearing      to    the      affected<\/p>\n
    party. However, admittedly respondent No. 1 was not<\/p>\n
    heard before passing orders, granting shop or kerosene<\/p>\n
    licence      in      favour        of     the       petitioner            society,<\/p>\n
    therefore,        learned     Counsel         would     submit        that       this<\/p>\n
    Civil Revision Application deserves to be dismissed.<\/p>\n
\n\n\n\n    8.           The\n                        \n                          learned           A.G.P.      appearing           for        the\n                       \n<\/pre>\n
    respondents \/State submitted that the said Order of<\/p>\n
    1975, provides remedy to the aggrieved person, if the<\/p>\n
    licence is granted or refused by virtue of provisions<\/p>\n
    of said Order of 1975 and therefore, the Civil Court<\/p>\n
    has no powers to entertain the suit.\n<\/p>\n
    9.                 I have heard learned Counsel appearing for<\/p>\n
    the    petitioner,        learned        Counsel      appearing           for      the<\/p>\n
    respondent          No.      1      and          learned         A.G.P.            for<\/p>\n
    respondents \/State at great length. I have carefully<\/p>\n
    perused      the    pleadings        in       the   revision,           annexures<\/p>\n
    thereto,     impugned       Judgment          and   order     passed        by     the<\/p>\n
    Court below, and also original record made available<\/p>\n
    for perusal. At the outset it would be relevant to<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 16:35:21 :::<\/span>
\n                                       18<\/span><\/p>\n
    refer Section 3 of the Essential Commodities Act, 1955<\/p>\n
    which reads thus :-\n<\/p>\n
             \"    Powers          to             control            production,\n             supply,distribution                 etc.         of         essential\n             commodities -\n                  (1)     If    the        Central      Government             is    of\n\n\n\n\n                                                  \n<\/pre>\n
             opinion that it is necessary or expedient so
\n             to do for maintaining or increasing supplies
\n             of any essential commodity or for securing<\/p>\n
             their        equitable                distribution                     and
\n             availability at fair price, [or for securing<\/p>\n
             any essential commodity for the defence of
\n             India or the efficient conduct of military<\/p>\n
             operations], it may, by order, provide for
\n             regulating           or               prohibiting                      the
\n             production,supply             and     distribution           thereof<\/p>\n
             and trade and commerce therein.\n<\/p>\n
                  (2)     Without prejudice to the generality<\/p>\n
             of the powers conferred by sub-section (1),
\n             an order made thereunder may provide,-\n<\/p>\n
                          (a)    for        regulating             by    licence,\n\n\n\n\n\n                          permits             or         otherwise                  the\n                          production          or      manufacture          of       any\n                          essential commodity;\n                          (b)    for brining under cultivation\n\n\n\n\n\n                          any waste or arable land, whether\n                          appurtenant            to     building          or    not,\n                          for the growing thereon of food-\n                          crops       generally          or     of      specified\n                          food-crops,             and        for        otherwise,\n                          maintaining              or     increasing                the\n                          cultivation                   of              food-crops\n\n\n\n\n                                                   ::: Downloaded on - 09\/06\/2013 16:35:21 :::<\/span>\n                     19<\/span>\n\n           generally,         or        of       specified          food-\n\n\n\n\n                                                                  \n           crops;\n           (c)    for controlling the price at\n\n\n\n\n                                       \n           which    essential                commodity             may   be\n           brought or sold;\n           (d)    for        regulating                by      licence,\n\n\n\n\n                                      \n           permits or otherwise the storage,\n<\/pre>\n
           transport, distribution, disposal,
\n           acquisition,                use        or     consumption
\n           of, any essential commodity;\n<\/p>\n
           (e)    for                  prohibiting                       the\n        ig withholding\n           essential commodity ;\n                                   from           sale         of        any\n\n\n           [(f) for          requiring                 any      0person\n      \n           holding       in       stock,          or     engaged          in\n           the production, or in the business\n           of     buying          or        selling,           of        any\n      \n\n\n           essential commodity,-\n   \n\n\n\n           (a)    to     sell            the           whole        or    a\n           specified          part           of        the     quantity\n           held     in       stock           or        produced           or\n\n\n\n\n\n           received by him, or\n           (b)    in     the           case        of        any     such\n           commodity         which           is    likely           to    be\n           produced          or    received              by        him    to\n\n\n\n\n\n           sell the whole or a specified part\n           of such commodity when produced or\n           received       by       him,          to     the     Central\n           Government         or        a    State           Government\n           or to an officer or agent of such\n           Government             or        to     a     Corporation\n           owned        or        controlled                  by     such\n\n\n\n\n                                       ::: Downloaded on - 09\/06\/2013 16:35:21 :::<\/span>\n                                             20<\/span>\n\n                               Government or to such other person\n\n\n\n\n                                                                                \n                               or class of persons and in such\n                               circumstances as may be specified\n\n\n\n\n                                                        \n                               in the order.\"\n\n\n                 The      Maharashtra              Scheduled             Commodities\n\n\n\n\n                                                       \n<\/pre>\n
    (Regulation of Distribution) Order, 1975 issued by the<\/p>\n
    Food   and        Civil   Supplies           Department,             Sachivalaya<\/p>\n
    Annexe, Bombay. The opening portion of the said order<\/p>\n
    reads thus :-\n<\/p>\n
                 ”      No.ECA-2875\/2598\/II- in exercise of the
\n                 powers conferred by sub section (1), read
\n                 with clauses (c), (d), (e), (f), (i), (ii)
\n                 of    sub    section        (2)    of     Section        3    of     the<\/p>\n
                 Essential Commodities Act, 1955 (x of 1955),<\/p>\n
                 and     of     all     other       powers          enabling          the
\n                 Government      of     Maharashtra           in      this     behalf,
\n                 read    with the order of the Government                               of<\/p>\n
                 India, Ministry of Agriculture (Department
\n                 of    Food), No. GSR, 316(E), dated the                              20th
\n                 June 1972 and the orders of the Government
\n                 of    India,    Ministry          of    Industry         and      Civil<\/p>\n
                 Supplies (Department of Civil Supplies and
\n                 Co-operation)          No.      S.O.     681      (E)      and     S.O.
\n                 682(E),      dated     the      30th    November,          1974      and
\n                 with the prior concurrence of the Central
\n                 Government,          the    Government          of     Maharashtra
\n                 hereby makes the following order, namely                              :-\n<\/p><\/blockquote>\n
                                                        ::: Downloaded on – 09\/06\/2013 16:35:21 :::<\/span>
\n                                         21<\/span><\/p>\n
                 1.     Short title, extent and commencement –\n<\/p><\/blockquote>\n
                 (1) This order may be called the Maharashtra
\n                 Scheduled          Commodities         (Regulation               of<\/p>\n
                 Distribution) Order, 1975.\n<\/p><\/blockquote>\n
                 (2)    It extends to the whole of the State of<\/p>\n
                 Maharashtra excluding the Rationing Area.\n<\/p><\/blockquote>\n
                 (3)    It shall come into force on the 1st day
\n                 of October 1975.”<\/p><\/blockquote>\n
                 Bare perusal of the afore mentioned extract<\/p>\n
     from the order would demonstrate that the said order<\/p>\n
     is passed in exercise of the powers conferred by sub<\/p>\n
     section (1)        read with clauses (c), (d), (e), (f),<\/p>\n
     (h), (i) (ii) and (j) of sub section (2) of Section 3<\/p>\n
     of the Essential Commodities Act, 1955 (X of 1955).\n<\/p>\n
     U\/clause    2     of     the    said     order,       definitions            of<\/p>\n
     “authorised        agent”        “authorised          establishment”,<\/p>\n
     “Collector”,”Commissioner”,”dealer”,”establishment”,”e<\/p>\n
     stablishment consumption”,”fair price shop”,”household<\/p>\n
     consumption”,”levy          sugar”,”rationing             area”,”supply<\/p>\n
     slip”,”supply card”, “supply document” and “scheduled”\n<\/p>\n
     are given. Perusal of clause 2 makes it clear that the<\/p>\n
     authorities       Collector,       and     State       Government            is<\/p>\n
     empowered        under   the    said     order   of    1975      to     issue<\/p>\n
     licence,    and   issue     card   etc.,    and     further        to     keep<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 16:35:21 :::<\/span>
\n                                          22<\/span><\/p>\n
     control over the licence and shops allotted under this<\/p>\n
     Order of 1975.\n<\/p>\n
                In clause No. 2 (f) the fair price price<\/p>\n
     shop is defined. The fair price shop means person in-\n<\/p>\n
     charge of the shop authorised under the provisions of<\/p>\n
     clause,   and    includes       a   person      in-charge        of     a    shop<\/p>\n
     where scheduled commodities are sold and is under the<\/p>\n
     control of Government. Therefore, it is clear that the<\/p>\n
     licenses are granted to run the fair price shop under<\/p>\n
     the provisions of said Order of 1975.\n<\/p>\n
                Clause 3 of the said order of 1975 reads<\/p>\n
     thus :-\n<\/p>\n
                “”issue of authorisation to fair price shops<\/p>\n
                and agents to obtain and supply scheduled<\/p>\n
                commodities”.–\n<\/p><\/blockquote>\n
                (1)    With      a       view     to       controlling             the<\/p>\n
                distribution of scheduled commodities, the<\/p>\n
                State Government or the Collector may issue<\/p>\n
                an authorisation to any person for being a<\/p>\n
                fair price shop or for being an agent of any<\/p>\n
                fair    price        shop,      to     obtain        and      supply<\/p>\n
                scheduled commodities in accordance with the<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 16:35:21 :::<\/span>
\n                               23<\/span><\/p>\n
      provisions prescribed by under this Order.\n<\/p><\/blockquote>\n
      (2)   Every      fair     price      shop      shall       deposit<\/p>\n
      with the Government or the Collector, a sum<\/p>\n
      not   exceeding          Rs.       5,000\/-        as      may       be<\/p>\n
      specified by it in this behalf, for the due<\/p>\n
      performance        of        the    conditions            of      the<\/p>\n
      authorisation and the sum so deposited or<\/p>\n
      any part thereof, may without prejudice to<\/p>\n
      any   other      penalty,      after      enquiry         and     for<\/p>\n
      reasons     to     be     recorded        in      writing,          be<\/p>\n
      forfeited     by    the      State     Government           or    the<\/p>\n
      Collector     for       contravention           of     any       such<\/p>\n
      conditions. If, as a result any departmental<\/p>\n
      action,     the     sum       deposited         or     any       part<\/p>\n
      thereof forfeited, the fair price shop shall<\/p>\n
      forthwith pay to Government such amount as<\/p>\n
      may be required to make up the prescribed<\/p>\n
      sum to be deposited as Security.\n<\/p>\n
      (3)   On the commencement of this Order in<\/p>\n
      any area, in the case of an authorised fair<\/p>\n
      price shop who is deemed to be a fair price<\/p>\n
      shop under the Explanation to sub clause (f)<\/p>\n
                                          ::: Downloaded on – 09\/06\/2013 16:35:21 :::<\/span>
\n                                           24<\/span><\/p>\n
                 of     clause         (2),     any     sum       which        stands<\/p>\n
                 deposited        by    him     as    security        immediately<\/p>\n
                 before such commencement shall be deemed to<\/p>\n
                 be deposited with the State Government as<\/p>\n
                 full or part security for the purposes of<\/p>\n
                 this clause.\n<\/p>\n
                 (4)    The State Government or the Collector<\/p>\n
                 may, at any time whether at the request of<\/p>\n
                 the fair price shop or authorised agent or<\/p>\n
                 suo-motu, after making such enquiry as may<\/p>\n
                 be deemed necessary and for reasons to be<\/p>\n
                 recorded in writing, add to, amend, vary,<\/p>\n
                 suspend or cancel the authorisation issued<\/p>\n
                 or deemed to be issued to him under this<\/p>\n
                 clause.”\n<\/p>\n
                      On careful perusal of of clause 3 of the<\/p>\n
    said Order of 1975, it is abundantly clear that the<\/p>\n
    State   Government       or    the    Collector         is      empowered         to<\/p>\n
    issue authorisation to any person being an agent of<\/p>\n
    any fair price shop to obtain and supply scheduled<\/p>\n
    commodities        in    accordance          with         the       provisions<\/p>\n
    prescribed    by    or   under       this    order.       Perusal         of     the<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 16:35:21 :::<\/span>
\n                                        25<\/span><\/p>\n
    clause 3 would make it clear that only “the State<\/p>\n
    Government or the Collector is the competent authority<\/p>\n
    to issue    an authroisation to any person for being a<\/p>\n
    fair price shop or for being an agent of any fair<\/p>\n
    price shop, to obtain and supply scheduled commodities<\/p>\n
    in   accordance    with     the    provisions       prescribed           by    or<\/p>\n
    under this order.”(emphasis supplied)<\/p>\n
                      In the context of controversy raised in<\/p>\n
    the present matter, the clause 24 is important. The<\/p>\n
    clause 24 of the said order of 1975 reads thus :-\n<\/p>\n
               ”       Power to call for an examine records of<\/p>\n
               proceedings       and    revise      orders.–              If     any<\/p>\n
               person is aggrieved by an order passed by
\n               the Collector, the Commissioner, and if any
\n               person is aggrieved by an order passed by<\/p>\n
               the Commissioner, the State Government, may,
\n               on an application made to him or it by the
\n               aggrieved      person,       within      thirty        days      from
\n               the date of receipt of such order, stay the<\/p>\n
               enforcement of such order. The Commissioner
\n               or the State Government, as the case may be,
\n               may also call for and examine the record of
\n               any enquiry or proceedings of the concerned
\n               Officer    exercising         or    failing        to    exercise
\n               the     powers    under      this     Order       to      add,      to
\n               amend,      vary,        suspend         or       cancel           any<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 16:35:21 :::<\/span>
\n                                 26<\/span><\/p>\n
      authorisation issued or deemed to be issued<\/p>\n
      under clause 3 or any supply card issued or
\n      deemed to be issued under clause 6 or to<\/p>\n
      forfeit      the    deposit           for    any        part       deemed
\n      thereof paid or deemed to be paid by a fair
\n      price shop authorised agent as security to<\/p>\n
      take any other action under the provisions
\n      prescribed by or under this Order, for the
\n      purpose of satisfying himself or itself as
\n      to the legality or propriety of the order<\/p>\n
      passed       by    such        officer,       and       as     to    the<\/p>\n
      regularity         of     the      proceedings
\n      officer may pass such order thereon as he or
\n                                                                    of    such<\/p>\n
      it, as the case may be, thinks fit:\n<\/p><\/blockquote>\n
             Provided that State Government may at
\n      any time, during the pendency of any enquiry
\n      or proceedings or within one year from the<\/p>\n
      date    of    any    order       passed        by       any    officer<\/p>\n
      under the provisions prescribed by or under
\n      this Order, suomotu stay any pending enquiry
\n      or proceedings or the enforcement of such<\/p>\n
      order if considered necessary and may call
\n      for and examine the record of any enquiry or
\n      proceedings, and pass such order thereon as
\n      it thinks fit:\n<\/p><\/blockquote>\n
             Provided further that, the Commissioner
\n      or the State Government, as the case may be,
\n      shall not pass any order under this clause
\n      which    adversely         affects          any    person          unless
\n      such    person      has        been    given        a    reasonable
\n      opportunity of being heard.”\n<\/p><\/blockquote>\n
                                             ::: Downloaded on – 09\/06\/2013 16:35:21 :::<\/span>
\n                                           27<\/span><\/p>\n
    10.         The    clause      24    of     the    said      order       of     1975<\/p>\n
    provides the remedy to the aggrieved person, by an<\/p>\n
    order passed by the Collector, or the Commissioner.\n<\/p>\n
    The State Government is also empowered to entertain<\/p>\n
    the     revision   by    the        aggrieved        person.         The      State<\/p>\n
    Government can also during the pendency of any enquiry<\/p>\n
    or proceedings or within one year from the date of any<\/p>\n
    order    passed<\/p>\n
                       by    any    officer           under     the      provisions<\/p>\n
    prescribed by or under this Order, suo-motu stay any<\/p>\n
    pending enquiry or proceedings or the enforcement of<\/p>\n
    such order if considered necessary                       and may call for<\/p>\n
    and     examine    the   record        of     any       such       enquiry         or<\/p>\n
    proceedings, and pass such                 order thereon as it thinks<\/p>\n
    fit.    The clause 24 of the said Order of 1975 further<\/p>\n
    provides that the Commissioner or the State Government<\/p>\n
    as the case may be, shall not pass any order under<\/p>\n
    this clause which adversely affects any person unless<\/p>\n
    such person has been given a reasonable opportunity of<\/p>\n
    being heard.\n<\/p>\n
    11.         In the aforesaid provisions of the Order of<\/p>\n
    1975, it is relevant to mention that the fair price<\/p>\n
    shop No. 73 was allotted to the petitioner on 18th<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 16:35:21 :::<\/span>
\n                                             28<\/span><\/p>\n
    August, 2004. The Minister, Food and Civil Supplies<\/p>\n
    Department,         Mantralaya,        Mumbai      allowed        the      revision<\/p>\n
    filed   by     the    petitioner        and     alloted        the      shops       No.<\/p>\n
    73,77 & 78 to the petitioner society. It is admitted<\/p>\n
    position that by virtue of said order, even the shop<\/p>\n
    No. 73 for which respondent No. 1 has claimed the<\/p>\n
    reliefs       in    the    suit,    came      to     be    allotted          to     the<\/p>\n
    petitioner society. At this juncture, it is relevant<\/p>\n
    to refer the pleadings in the suit, which would make<\/p>\n
    it clear that aggrieved by the order of allotment of<\/p>\n
    shop    No.    73    in    favour      of     present        petitioner,            the<\/p>\n
    respondent No. 1 herein i.e. plaintiff in suit did<\/p>\n
    file Writ Petition No. 6194 of 2004 before this Court.\n<\/p>\n
    In respect of Writ Petition bearing No. 6194 of 2004,<\/p>\n
    the respondent No. 1 has made following statement in<\/p>\n
    the plaint in para No. 6, which reads thus :-\n<\/p>\n
                  ”      But     the    defendant           No.      5     has      tried
\n                  continuously to get the possession of fair
\n                  price       shop   No.    73    by     hook      or     crook,       who<\/p>\n
                  sought orders from the Minister (Food and
\n                  Civil Supply) on 18\/08\/2004 into back                                and
\n                  behind of the plaintiff has                     filed        a      Writ
\n                  Petition       NO.       6196     of      2004         through       her
\n                  Advocate       High       Court        Shri        A.D.        Sugdare
\n                  against the respondent No. 5 and others with
\n                  a prayer to issue a writ of mandamus or any<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 16:35:21 :::<\/span>
\n                                    29<\/span><\/p>\n
      other      writ        in     like          nature        or       order     or<\/p>\n
      directions by the Honourable High Court to
\n      grant permission to run the fair price shop<\/p>\n
      No. 73 usual terms and conditions. But there
\n      was a caveat application No. 397 of 2004 of
\n      the    respondent            No.       5.    In     the     said      caveat<\/p>\n
      application           defendant             No.     5    has       contended
\n      that       “Non       caveators             are         likely       to      be
\n      challenging            the    impugned             order       dated       18th
\n      August,         2004         which          is      passed          by      the<\/p>\n
      Honourable Minister for Food an Civil Supply<\/p>\n
      Department Mantralaya, Mumbai-32 in respect
\n      of fair price shop Nos. 73,77 & 78 in case
\n      No.    VAM\/1604\/1168\/PK\/037\/C.S.21.                            A    copy     of<\/p>\n
      the    said          caveat       is    annexed           herewith          and
\n      marked          as     ANNEXTURE               K.        However,          the
\n      plaintiff has already made her statement in<\/p>\n
      the said Writ petition that the defendant<\/p>\n
      NO.    5    has       filed       a     proceeding             before      the
\n      learned         Minister           Mantralaya,              Mumbai         and
\n      sought      order       on     18\/08\/2004,               the       plaintiff<\/p>\n
      was not the party in the said matter nor
\n      issued      a     notice          to    the       plaintiff          by    the
\n      learned Minister for Food and Civil Supply
\n      Department.            Therefore,            said        order       is     not<\/p>\n
      binding upon the plaintiff. According to the
\n      ratio      laid        down        by       the     Honourable             High
\n      Courts and Honourable Supreme Court of India
\n      that the orders passed in the proceeding are
\n      not    binding         on     a       person        in    view       of    the
\n      natural justice, because of the plaintiff is
\n      not party in the matter before the learned<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 16:35:21 :::<\/span>
\n                                         30<\/span><\/p>\n
                Minister       for      Food           and        Civil         Supply<\/p>\n
                Department, Mantralaya, Mumbai.                          Therefore,
\n                the said order of the learned Minister for<\/p>\n
                Food and Civil Supply Department, Mantralaya
\n                Mumbai    is     not    binding          on      plaintiff.          The
\n                prayer of plaintiff made in Writ Petition<\/p>\n
                No. 6196 of 2004 for issuing direction to
\n                allot fair price shop NO. 73 to her as a
\n                succor     and       legal       heir       of     deceased          her
\n                husband Sukhdeo Amrutrao Palaskar. The facts<\/p>\n
                of seeking order from the learned Minister,<\/p>\n
                Food and Civil Supply, Mantralaya, Mumbai by
\n                the defendant NO. 5 into back and behind of
\n                the plaintiff cannot be challenged into the<\/p>\n
                Writ     Petition.      The       plaintiff            sought        the
\n                permission to run the fair price shop NO. 73<\/span>
\n                from the defendant Nos. 1 & 2 vide order<\/p>\n
                dated      2\/08\/2005.            Therefore,             the         Writ<\/p>\n
                Petition       has     become          in        fructuous.          The
\n                plaintiff. The plaintiff                    has filed a Civil
\n                Application       to    withdraw                 the     said       writ<\/p>\n
                petition    through          a    Civil       Application            No.
\n                of 2005.”\n<\/p>\n
                The order allotting the fair price shop No.<\/p>\n
    73, by the Minister, Food Civil Supplies Department in<\/p>\n
    favour of petitioner herein was subject matter of the<\/p>\n
    said Writ Petition.           On perusal of entire pleadings<\/p>\n
    extracted    here-in-above,          it       is      appears         that        the<\/p>\n
    respondent No. 1 who was petitioner in the said Writ<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 16:35:21 :::<\/span>
\n                                             31<\/span><\/p>\n
    Petition, did not sought liberty to file any other<\/p>\n
    proceedings, before any other authority or competent<\/p>\n
    Court.     It     appears        that        said     Writ       Petition           was<\/p>\n
    withdrawn simplictor. At the relevant time when Writ<\/p>\n
    Petition      was      filed,      the        respondent           No.      1     i.e.<\/p>\n
    petitioner       understood       correctly           that      the      aggrieved<\/p>\n
    person by refusal of fair price shop has remedy as<\/p>\n
    provided under the provisions of said Order of 1975,<\/p>\n
    and   in   case       the
\n                         ig     State       Government         has      taken       final<\/p>\n
    decision,       filing      of    Writ       petition         is     appropriate<\/p>\n
    remedy. An order passed by the Minister, Food Civil<\/p>\n
    Supplies        Department,         allowing           revision            of       the<\/p>\n
    petitioner granting fair price shop No. 73, in favour<\/p>\n
    of the petitioner society has attended finality. The<\/p>\n
    respondent No.1 herein should have sought liberty from<\/p>\n
    the High Court for filing any proceedings subsequent<\/p>\n
    to withdrawing the Writ Petition.\n<\/p>\n
    12.             The another important aspect is that whether<\/p>\n
    the respondent No. 1 had any legal right available in<\/p>\n
    in his\/her favour, when the revision of the petitioner<\/p>\n
    was   heard      by     the      Minister,          Food      Civil        Supplies<\/p>\n
    Department and same came to be allowed by granting<\/p>\n
    fair price shop No. 73 by order dated 18th August,<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 16:35:21 :::<\/span>
\n                                             32<\/span><\/p>\n
    2004. At the relevant time the respondent No. 1 had no<\/p>\n
    any licence in her name. Even prior to that, licence<\/p>\n
    was not in the name of respondent No.1                          First time on<\/p>\n
    2nd August, 2005, the Distribution Officer, without any<\/p>\n
    authority under law,                without any powers, and without<\/p>\n
    taking     permission           or      approval          of       the       higher<\/p>\n
    authorities, issued a letter in favour of respondent<\/p>\n
    No. 1, directing to run the fair price shop No.73, of<\/p>\n
    which    the     licence
\n                           ig      was    in      the   name       of     petitioner<\/p>\n
    society. It is also pertinent to note that on 18th<\/p>\n
    August,        2005    the     Additional        Collector,           Aurangabad<\/p>\n
    issued     a      letter       to     the       Distribution              Officer,<\/p>\n
    Aurangabad that he had no power to issue letter dated<\/p>\n
    2nd August, 2005 in favour of the respondent No. 1 i.e.<\/p>\n
    original plaintiff. Thus, understood the Distribution<\/p>\n
    Officer is not empowered or have any authority in law<\/p>\n
    to issue such letter dated 2nd August, 2005 in favour<\/p>\n
    of the respondent No. 1 for running the fair price<\/p>\n
    shop     No.     73.    As     stated        earlier,      only       the      State<\/p>\n
    Government or Collector, is competent to issue licence<\/p>\n
    to run the fair price shop, no any other subordinate<\/p>\n
    officer is empowered to issue the licence or grant the<\/p>\n
    permission        to     run    the      fair       price       shop,        unless<\/p>\n
    specifically           empowered      by       State      Government.              The<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 16:35:21 :::<\/span>
\n                                           33<\/span><\/p>\n
    revision filed by the petitioner for grant of licence<\/p>\n
    of shop Nos. 73,77 & 78 was heard and decided on 18th<\/p>\n
    August,   2004.      In    the   said       revision         the    officer        of<\/p>\n
    State     Government           were        party\/       respondent.               The<\/p>\n
    respondent No. 1 i.e. Ori. Plaintiff was not at all in<\/p>\n
    picture. Even in the second revision which was filed<\/p>\n
    by the petitioner society which was heard and same was<\/p>\n
    reserved for orders on 28th July, 2005, the respondent<\/p>\n
    No. 1 herein i.e. Ori. Plaintiff was not in picture at<\/p>\n
    all,    and    the     State     Government          Officers          who      have<\/p>\n
    refused       to   grant       permission          in     favour          of      the<\/p>\n
    petitioner to allot kerosene quota were party to the<\/p>\n
    said revision. Therefore, when both the revisions were<\/p>\n
    filed and heard by the State Government, the Minister<\/p>\n
    of Food and Civil Supplies Department, there was no<\/p>\n
    question of giving any hearing to the respondent No. 1<\/p>\n
    i.e. Ori. Plaintiff. The Counsel for the petitioner<\/p>\n
    Society strenuously urged that there is no legal right<\/p>\n
    in favour of the respondent No. 1 to run the fair<\/p>\n
    price   shop.      The    permission        given       by    the      competent<\/p>\n
    authority      dated     2nd   August,      2005     is      not    valid.        The<\/p>\n
    Civil Court has no jurisdiction to entertain the suit<\/p>\n
    filed by the respondent No. 1, her suit required to be<\/p>\n
    rejected.\n<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 16:35:21 :::<\/span>
\n                                            34<\/span><\/p>\n
                   Upon perusal of the prayer in the suit filed<\/p>\n
    by     the    respondent       No.     1,    it     is     clear        that       the<\/p>\n
    respondent No. 1 has not challenged the order dated<\/p>\n
    18th   August,       2004    passed    by     the    Minister,          Food       and<\/p>\n
    Civil Supplies Department which has attained finality,<\/p>\n
    by which fair price shop No. 73 was allotted to the<\/p>\n
    petitioner         society.    The    Writ     petition         filed       by     the<\/p>\n
    respondent No. 1, challenging the said order came to<\/p>\n
    be withdrawn.\n<\/p>\n
    13.            Upon careful perusal of the prayer in the<\/p>\n
    suit,        the    Ori.     Plaintiff        has        prayed        that        the<\/p>\n
    defendants          be     restrained        from      discontinuing               the<\/p>\n
    business carried by the plaintiff of fair price shop<\/p>\n
    No. 73 without following due procedure under law by<\/p>\n
    issuing       the     perpetual       injunction         and      declare          the<\/p>\n
    orders dated 6th September, 2005, 8th September, 2005<\/p>\n
    and 22nd August, 2005 passed by the respondent Nos. 1<\/p>\n
    to 4 back and behind without hearing the plaintiff as<\/p>\n
    null and void.            In fact, as stated earlier, the order<\/p>\n
    passed       by     the    Minister,        Food    and      Civil        Supplies<\/p>\n
    Department, in revision granting the licence to run<\/p>\n
    the fair price shop No. 73 in favour of the petitioner<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 16:35:21 :::<\/span>
\n                                                 35<\/span><\/p>\n
    has    attained          finality       and       said      order        is     not      the<\/p>\n
    subject matter of the suit. As stated here-in-above,<\/p>\n
    the licence is granted in favour of the petitioner<\/p>\n
    society to run the shop No. 73. Not only the licence<\/p>\n
    for    food    grains,       but       even       Distribution            Officer        has<\/p>\n
    granted    kerosene         quota        in      favour      of     the     petitioner<\/p>\n
    society.       It     is    not        in     dispute         that       earlier         the<\/p>\n
    petitioner society was running these fair price shop.\n<\/p>\n
    Therefore, the licence to run the shop No. 73 been<\/p>\n
    granted       in    favour     of      the        petitioner         society         under<\/p>\n
    clause 3 of the said Order of 1975. In the said Order<\/p>\n
    the remedy is provided to the aggrieved person. The<\/p>\n
    licence       is     also      issued             under       the        said       order.\n<\/p>\n
    Therefore,         the     said     order         of   1975        itself       is     self<\/p>\n
    contained          Code    which       provides           provision           to     grant<\/p>\n
    licence. It further provides remedy to the aggrieved<\/p>\n
    person.       The    said     Order          of    1975       is     issued        taking<\/p>\n
    recourse      to     Section       3    of       the   Essential          Commodities<\/p>\n
    Act,    1955.       Before        said       order       came       to    be       issued,<\/p>\n
    approval of the Central Government is also taken. The<\/p>\n
    issuance of licence to run the fair price shop is<\/p>\n
    completely controlled and regulated by the provisions<\/p>\n
    enumerated in the said Order of                           1975 if any claim \/<\/p>\n
    right    is    accrued       by        virtue       of     licence         granted        in<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 16:35:21 :::<\/span>
\n                                                36<\/span><\/p>\n
    favour of the party or refusal of licence remedy is<\/p>\n
    provided     for       redressal       in       the    said      Order       of     1975<\/p>\n
    itself.     In    the    present       case,          there    was      no    licence<\/p>\n
    issued in favour of respondent No. 1.                              First time, a<\/p>\n
    letter      dated       02nd      August,         2005        issued         by       the<\/p>\n
    Distribution        Officer,         and    the       same    was     without         any<\/p>\n
    authority        under       the      said        Order         of      1975.         The<\/p>\n
    petitioners were aggrieved by rejection of their claim<\/p>\n
    by    the   Collectorig        and    Commissioner,             and      therefore,<\/p>\n
    revisions came to be filed before the Minister, Food &<\/p>\n
    Civil Supplies Department, and the Minister, Food &<\/p>\n
    Civil Supplies Department allowed the revision filed<\/p>\n
    by the petitioners, and thereby licence came to be<\/p>\n
    issued in favour of the petitioner society to run the<\/p>\n
    fair   price      shop      No.      73,    77    &    78.      If    at     all      the<\/p>\n
    respondent No. 1 was aggrieved, she had remedy under<\/p>\n
    the said Order of 1875 or file a writ petition. The<\/p>\n
    respondent       No.    1   rightly         understood          and     filed       Writ<\/p>\n
    Petition, challenging the order dated 18th August, 2004<\/p>\n
    and    thereafter,          withdrawn           the    said       Writ       Petition<\/p>\n
    unconditionally.\n<\/p>\n
    14.              The provisions of Section 9 of the Civil<\/p>\n
    Procedure Code, not only contemplates the express bar,<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 16:35:21 :::<\/span>
\n                                              37<\/span><\/p>\n
    but even implied bar to entertain the suit. At this<\/p>\n
    juncture it would be appropriate to refer to provision<\/p>\n
    under       Section   6     of    the    Essential         Commodities            Act,<\/p>\n
    1955, the said Section reads thus :-\n<\/p>\n
                  ”       Any    order made          under section             3 shall<\/p>\n
                  have          effect        notwithstanding                 anything
\n                  inconsistent           therewith         contained           in      any
\n                  enactment          other        than     this       Act      or      any<\/p>\n
                  instrument having effect by virtue of any
\n                  enactment other than this Act”<\/p><\/blockquote>\n
                   Thus, Section 6 of the Essential Commodities<\/p>\n
    Act, 1955 has given overriding effect to the order<\/p>\n
    made under Section 3 of the Essential Commodities Act,<\/p>\n
    1955, and therefore, the said order of 1975 is having<\/p>\n
    overriding effect. Therefore, procedure provided under<\/p>\n
    the said order has to be followed by the aggrieved<\/p>\n
    person. The Apex Court in the case of ” Harishankar<\/p>\n
    Bagla and another V\/s. The State of M.P.”,cited supra,<\/p>\n
    has considered the provisions of Section 3 and Section<\/p>\n
    6 of the Essential Supplies (Temporary Powers) Act. In<\/p>\n
    para No. 9 it is stated thus :\n<\/p>\n
            ”      The    Legislature             cannot     delegate          its
\n            function of laying down legislative policy in
\n            respect of a measure and in formulation as
\n            rule of conduct.”\n<\/p><\/blockquote>\n
                                                         ::: Downloaded on – 09\/06\/2013 16:35:21 :::<\/span>
\n                                              38<\/span><\/p>\n
                In para No. 12 the Apex Court has considered<\/p>\n
    the provisions of the said Act and held thus :-\n<\/p><\/blockquote>\n
                ”         Section        6    of    the      Act     cited        above
\n                declares that an order made under Section 3
\n                shall      have     effect         notwithstanding          anything
\n                inconsistent             therewith          contained        in      any<\/p>\n
                enactment other than this Act. In other words
\n                it declares that if there is any repugnancy
\n                in an order made under Section 3 with the<\/p>\n
                provisions          of       any    other     enactment,            then
\n                notwithstanding
\n                       ig                      that        inconsistency             the
\n                provisions          of       the    Order     will     prevail         in
\n                preference to the provisions of other laws<\/p>\n
                which       are      thus          inconsistent            with      the
\n                provisions of the order”<\/p><\/blockquote>\n
                In    the     said       Judgment      the     Hon’ble        Supreme<\/p>\n
    Court held that provisions of Section 3,4 & 6 of the<\/p>\n
    Essential Supplies (Temporary Powers) Act, 1946 are<\/p>\n
    constitutional          and     the        impugned        order        is      also<\/p>\n
    constitutional. The Supreme Court has considered the<\/p>\n
    provisions       of    old    Act.       Even     in    the    new      Act     i.e.<\/p>\n
    Essential        Commodities             Act,      1955,         the      similar<\/p>\n
    provisions are made in Section No. 3 and 6 of the said<\/p>\n
    Act. Therefore, redressal of any grievance by refusal<\/p>\n
    of licence or granting of licence in favour of other<\/p>\n
    party or for any other reason, the remedy is under the<\/p>\n
    said order of 1975. In case if the person is aggrieved<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 16:35:21 :::<\/span>
\n                                       39<\/span><\/p>\n
    by final decision under said order, only way is to<\/p>\n
    file Writ Petition, as understood by the respondent<\/p>\n
    No. 1, when she filed Writ Petition, challenging the<\/p>\n
    order dated 18th August, 2004, allowing the revision of<\/p>\n
    the petitioner granting licence to run the fair price<\/p>\n
    shop Nos. 73, 77 & 78. The said Writ Petition was<\/p>\n
    withdrawn by the respondent No. 1.\n<\/p>\n
    15.          In my opinion, viewed from any angle and by<\/p>\n
    necessary implications impliedly the jurisdiction of<\/p>\n
    the Civil Court is barred. Section 9 of the Civil<\/p>\n
    Procedure Code contemplates not only express bar but<\/p>\n
    even    implied   bar      to     exercise      the       jurisdiction.\n<\/p>\n
    Therefore, there is no substance in the contention of<\/p>\n
    the learned Counsel        appearing for the respondent No.<\/p>\n
    1 that there is no provision in the said order of 1975<\/p>\n
    or in the Essential Commodities Act, 1955 which bars<\/p>\n
    the    jurisdiction   of    the    Civil     Court.           The     person<\/p>\n
    claiming legal right must first establish that he has<\/p>\n
    legal right in his \/her favour. The respondent NO. 1<\/p>\n
    had no licence in her favour prior to granting licence<\/p>\n
    in favour of petitioner society.\n<\/p>\n
    16.         In the light of aforesaid discussion, in the<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 16:35:21 :::<\/span>
\n                                           40<\/span><\/p>\n
    facts     and    circumstances         of    the    case,       this       Civil<\/p>\n
    Revision Application succeeds. The impugned Judgment<\/p>\n
    and order dated 22nd December, 2005 below Exh. 30 in<\/p>\n
    Regular Civil Suit No. 653 of 2005 is quashed and set<\/p>\n
    aside.     However, it is clarified that, respondent No.<\/p>\n
    1   is    at     liberty      to     take    appropriate          remedy        as<\/p>\n
    available to her in accordance with law. Needless to<\/p>\n
    mention    that        if    the    respondent      No.     1     files        any<\/p>\n
    proceedings       asig  available       under      law,    the      Concerned<\/p>\n
    forum\/Court       will       take    into    consideration          the      time<\/p>\n
    consumed in prosecuting the legal remedies and take<\/p>\n
    liberal     view       in     interpreting         the    provisions            of<\/p>\n
    Limitation       Act.       The    Civil    Revision      Application           is<\/p>\n
    allowed to the above                extent. Rule made absolute in<\/p>\n
    above terms. The Civil Revision Application is allowed<\/p>\n
    and disposed of.\n<\/p>\n
                                                     [S.S. SHINDE, J]<\/p>\n
    SDM*159.02 CRA<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 16:35:21 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Nandbodhi Magaswargiya Grahak vs Food on 28 October, 2010 Bench: S. S. Shinde 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-181263","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nNandbodhi Magaswargiya Grahak vs Food on 28 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/nandbodhi-magaswargiya-grahak-vs-food-on-28-october-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nandbodhi Magaswargiya Grahak vs Food on 28 October, 2010 - 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