Judgment:
V.C. Daga, J.
1. Heard. Perused petition.
2. Rule returnable forthwith. Petition is taken up for hearing by consent of parties.
3. This petition is directed against the order dated 8.2.2008 passed by the Respondent No. 3 - the Hon'ble Minister, Food and Civil Supplies, Mantralaya - Mumbai, whereby the order of allotment of the ration shop in favour of the Petitioner is set aside and direction to the Respondent No. 2, the Controller of Rationing, to allot the ration shop to the Respondent No. 4 - Smt Sharmila Surendra Gupta is issued.
FACTUAL BACKGROUND.
4. The Controller of Rationing issued an advertisement in the newspaper on 17.2.2007 inviting application on or before 26.3.2007 for allotment of a new ration shop for village Versova, Andheri (West), Mumbai 400 095. Three applications including that of the Petitioner and the Respondent No. 4 were received by him.
5. The aforesaid three applications were processed by the Deputy Controller of Rationing. He appears to have visited the shop premises of each of the applicants and verified the documents annexed with their respective applications. The Petitioner was categorized in the priority/category No. 1 meant for handicapped person/woman, whereas the Respondent No. 4 with one other applicant were categorized under priority/category No. 8 ( general category).
6. The Deputy Controller of Rationing after due verification and categorisation of the respective applicants, found the claim of the Petitioner meritorious than others since the premises of the Petitioner was found to be located in the middle of locality, convenient for the card holders as well as for transportation of goods. He was also satisfied with the financial capability of the Petitioner to run the ration shop, as a result thereof, the report, inter-alia; recommended the name of the Petitioner for allotment of the ration shop. The Controller of Rationing acting upon the said recommendation vide his order dated 1.10.2007 allotted the ration shop to the Petitioner rejecting the claim of the Respondent No. 4 and one another applicant on the grounds set out in the order.
7. Being aggrieved by the aforesaid order, the Respondent No. 4, Smt. Gupta and one another applicant Smt. Dube invoked revisional jurisdiction of the State Government. The Hon'ble Minister for Food and Civil Supplies Department, (M.S.) Mumbai, the Respondent No. 3 on 1.10.2007 stayed the order of allotment passed by the Respondent No. 2, which was communicated to the Petitioner on 7.12.2007, practically after two months.
8. The Respondent No. 3 after hearing parties to the revision petition set aside the allotment of ration shop in favour of the Petitioner and directed allotment thereof in favour of Respondent No. 4 by the impugned order dated 8.2.2008.
9. Being aggrieved by the aforesaid order, the Petitioner has invoked the writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.
RIVAL SUBMISSIONS:
10. The learned Counsel for the Petitioner reiterated all the submissions which were advanced before the Respondent No. 3. He submits that the Petitioner is a handicapped woman. That the certificate showing 60% disability was submitted along with application. A letter of guarantee dated 26.3.2007 issued by 'Shubham Co-operative Credit Society Limited, Mumbai', inter-alia, agreeing to finance Rs 1 lac for running ration shop was also tendered by the Petitioner. That the documents pertaining to shop premises and ownership thereof annexed to the application were examined and verified and the shop premises was inspected by the Deputy Controller of Rationing. He found it to be convenient to the card holders as well as for transportation of goods.
11. The learned Counsel for the Petitioner while challenging the grant of ration shop in favour of the Respondent No. 4 reiterated that she was categorised in priority No. 8, whereas the Petitioner was categorised in priority No. 1. He further submits that as per the order of the Respondent No. 2, the premises suggested by Respondent No. 4 was found to be in narrow lane 60 to 70 feet inside from the main road, inconvenient to the card holders as well as for transportation of goods. He also tried to find fault with the identity of the shop premises described by the Respondent No. 4 in her application and went on to point out that no documentary proof to establish her financial capability to run ration shop was produced either on the date of application or cut off date.
12. The learned Counsel for the Petitioner submits that the premises which was sought to be shown as premises for running ration shop by the Respondent No. 4 is owned by one Mr Mahesh Pedhe. That Mr Pedhe himself, had applied for licence on 12.7.2007 under the Shops and Establishments Act to the Corporation to run grocery shop in the very same premises. As such he tried to emphasize that the premises sought to be shown as available for running ration shop by the Respondent No. 4 was factually not available with her either on the date of application or at any rate on the cut off date.
13. The learned Counsel for the Petitioner further pointed out that the Deputy Controller of Rationing was not justified in recording in his report that the Respondent No. 4 had credit balance in her bank account in the sum of Rs. 50,700/-, since the credit entry was a old entry dated 13.10.2006. He, thus, submits that no evidence was available on record of the Deputy Controller of Rationing showing the financial capability of the Respondent No. 4 to run ration shop either on the date of application or cut off date.
14. The learned Counsel for the Petitioner further went on to allege, that a fraud was played by the Respondent No. 4 by producing truncated document to establish availability of the shop and her financial worth. While turning to the impugned order, he urged that, one line order passed by the Respondent No. 3, in favour of the Respondent No. 4, holding that she fulfilled all requirements of the grant, is unsustainable being perverse, arbitrary, tainted with bias suffering from lack of transparency. He further submits that the findings which were recorded against the Respondent No. 4 in the order refusing to allot relationship ought to have been considered and dealt with by the Respondent No. 3 by a reasoned order, since it was obligatory on his part to set aside each adverse finding before allowing her revision application. He, thus, tried to find fault with the decision making process and urged that the impugned order in favour of the Respondent No. 4 is in breach of the principles of natural justice, being an unreasoned order.
15. The learned Counsel for the Petitioner also went a step ahead and made allegations of favouritism against the Respondent No. 3 contending that the brother of Respondent No. 4, Mr Omprakash Gupta, a President of the Maharashtra Pradesh Congress Committee (Human Rights Department), is close to the party in power. The Petitioner has produced the visiting card of Mr Omprakash Gupta, carrying his address as 'R. No. 2. Gupta Niwas, Shakti Nagar, Behram Baug, Jogeshwari (W), Mumbai 400 102.' The learned Counsel tried to connect the said visiting card with the address of the Respondent No. 4 given by her in her application and tried to reinforce his submission based on common address, given hereinbelow.
-------------------- -----------------------Smt.Sharmila Sure- 'Omprakash M. Gupta,ndram Gupta, Gupta R.No.2. Gupta NiwasChawl, Room No.2, Shakti Nagar, BehramShaktinagar, Behra, Bau) Jogeshwari (West)Baug, Jogeshwari Mumbai-400102.'(West) Mumbai-400102.--------------------- -------------------------
16. The above relationship has neither been denied by the Respondent No. 4 nor she has produced any affidavit of Mr Omprakash M. Gupta to raise dispute in this behalf. According to the learned Counsel the common address goes to suggest that the Respondent No. 4 Smt. Sharmila Surendra Gupta and Mr Omprakash Gupta are resident of the same premises. According to him, this is sufficient evidence to draw an inference of favouritism by the Respondent No. 3 in favour of the Respondent No. 4. He further went on to submit that it is not uncommon in the political circle to bestow state largesses on political workers to help them. He tried to establish political affinity between the respondent Nos. 3 and 4 through Shri Omprakash Gupta. He thus, tried to contend that the impugned order is not only arbitrary and perverse but smacks of favouritism in favour of the Respondent No. 4 warranting interference at the hands of this Court.
17. Percontra, the learned Counsel for the Respondent No. 4 tried to support the impugned order contending that the Petitioner was minor on the date of application. Reliance is placed on the photocopy of the ration card wherein the age of the Petitioner is shown as '12 years' on the date of issuance of the ration card i.e. on 25.4.2001. He further tried to find fault with the income certificate issued in favour of the Petitioner contending that it was not in the prescribed format. That no evidence of financial capability along with application was produced. That the passbook was submitted on 3.4.2007 and that the certificate dated 28.3.2007 was inserted in the records of the Controller of Rationing in collusion with the office staff.
18. The learned Counsel for the Respondent No. 4 also referred affidavit dated 1.9.2008 filed by the Respondent No. 4 to contend that bank did not maintain the record of her bank account for the period 13.6.2006 to 13.6.2007 and, therefore, some entries showing withdrawals were not shown in her bank passbook. He, however, did not deny withdrawals of the various amounts from her account as alleged by the Petitioner. He also tried to contend that the Petitioner is a dummy candidate of some other social worker. He, thus, prayed for dismissal of the petition with costs.
19. The Respondent No. 1, State Government, appeared through the learned A.G.P. and has also filed affidavit dated 17.3.2008 of one Shri S. Y. Kursange, Deputy Secretary to the Government, Food, Civil Supplies and Consumer Protection Department, Mantralaya, Mumbai in support of the impugned order wherein he went on to state on oath that no relaxation in terms and conditions of the advertisement were permissible except in favour of the candidates falling in the category of 'educated unemployed'. Since the Petitioner did not fall in that category, no relaxation was available in favour of any of the applicants. He further went on to assert that the Respondent No. 4, who was from general category fulfilled all requirements and was therefore allotted the ration shop. Considering this aspect, the Hon'ble Minister has set aside the order of the Controller of Rationing dated 1.10.2007 and has given new shop in favour of the Respondent No. 4 i.e. in priority category No. 8 i.e. general category and has fulfilled all the conditions of allotment vide order dated 8.2.2008'. The learned A.G.P. based on this affidavit prayed for dismissal of the petition.
CONSIDERATION:
20. Having heard rival parties at length, having examined the affidavits, counter affidavits and the stand taken by the respective Respondents, the impugned order is liable to be set aside being arbitrary, perverse suffering from lack of transparency for want of reasons in support of grant in favour of the Respondent No. 4.
21. The order dated 1.10.2007 impugned before the Respondent No. 3, the Hon'ble Minister, Food and Civil Supplies came to be set aside holding that the Petitioner could not establish her financial capability to run ration shop on the date of application or cut off date as her passbook showed the credit entry dated 3.4.2007 and that the letter of guarantee (Hammipatra) issued by the bank was inserted in the record of the Controller of Rationing subsequent to the last date i.e. 26.3.2007 and in one line held that the Respondent No. 4 fulfilled all the conditions warranting allotment of ration shop in her favour.
22. First, let me consider the validity of the order to the extent it grants or allots ration shop in favour of the Respondent No. 4. The basic rule of law and natural justice require recording of reasons in support of the order. The order has to be self-explanatory and should not keep the higher court guessing for reasons. Reasons provide live link between conclusion and evidence. That vital link is the safeguard against the arbitrariness, passion and prejudice. The reason is a manifestation of mind of the adjudicator. It is a tool for judging the validity of the order under challenge. It gives opportunity to the court to see whether or not the adjudicator has proceeded on the relevant material and evidence.
23. In Union of India v. H.P. Chothia : [1978]3SCR652 it was held by the Apex Court that absence of a speaking order cannot be cured by a counter affidavit giving reasons which should have been in the order itself.
24. In Mohinder Singh Gill and Anr. v. Chief Election Commissioner, New Delhi and Ors. : [1978]2SCR272 , it was held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of evidence or otherwise, otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out.
25. In the case of Bhagat Raja v. Union of India : [1967]3SCR302 it was held that 'after all a tribunal which exercises judicial or quasi judicial powers can certainly indicate its mind as to why it acts in a particular way and when important right of parties of far-reaching consequences to them are adjudicated upon in a summary fashion, without giving a personal hearing when proposals and counter proposals are made and examined, the least that can be expected is that the tribunal shall tell the party why the decision is going against him in all cases where the law gives a further right of appeals'.
26. In Swamiji v. Commissioner, H.R.C.E. : [1980]1SCR368 , the Supreme Court noted with approval the legal maxim 'cessante ratione legis cessat ipsa lex', which means reason is the soul of law and when reason of any particular law ceases, so does the law.
27. In Maharashtra State Board of Secondary and Higher Secondary Education v. K. S. Gandhi : [1991]1SCR773 , the Supreme Court held that reasons are harbinger between the mind of the maker of the order to the controversy in question and the decision or the conclusion arrived at. They also exclude the chances to reach arbitrary, whimsical or capricious decision or conclusion. The reasons assure an inbuilt support to the conclusion/decision reached.
28. In the instant case, no reasons are available on record as to on what basis the Hon'ble Minister has come to the conclusion that the Respondent No. 4 fulfils all the conditions, whereas more than three shortcomings in her application were pointed out by the Deputy Controller of Rationing and accepted by the Controller of Rationing based on the material available on record. It was expected on the part of the Respondent No. 3 to deal with each and every shortcoming pointed out by the authorities below while rejecting claim of the Respondent No. 4, so that this Court could examine the validity of the reasons so recorded.
29. In the report, the Deputy Controller of Rationing, he has, categorically, pointed out that so far as the identity of the shop premises suggested by the Respondent No. 4 is concerned the application mentions the address of the premises as 'Mahesh Apartment'. The Respondent No. 4, thereafter has made an application for amendment to her application so as to substitute the address as 'Mahesh Apartment' with that of 'Mahesh Pedhe Apartment'. The notarised affidavit refers to the shop as 'M' Apartment, Bazar Galli, Varsova, Andheri (W),' whereas the papers pertaining to the property and tax receipt including the electricity bill show the address of the Respondent No. 4 'Pedhe house, Mandvi Galli, Versova Andheri (W), Mumbai 400 058'. It was, thus, clearly brought out in the report that the property papers submitted, nowhere referred to the 'Mahesh Pedhe Apartment' as such they were not in order.
30. The subject report in column No. 13 clearly mentions that 'Mr Mahesh Pedhe' has applied for licence under Shops and Establishments Act to the Corporation to run 'Pedhe Kirana Stores' in the same premises as per his application dated 12.7.2007, the copy of which was produced by the Respondent No. 4 herself with her application. In column No. 4 of the subject report refers to the financial capability of the Respondent No. 4. It is mentioned therein that the credit balance in her account is in the sum of Rs. 50,700/-. In the last 'remark' column, it is specifically mentioned that shop premises proposed by the Respondent No. 4 is located in narrow lane about 60 to 70 feet away from the main road, inconvenient for the card holders as well as for transportation of goods either by truck or tanker, as such her application does not deserve recommendation. She was placed in the category No. 8.
31. As against the above, if one turns to the subject report relating to the Petitioner, it was, specifically, pointed out therein that she fulfilled all the terms and conditions of the advertisement and that she falls in the category No. 1. Surprisingly, there is no reference to the certificate/guarantee letter (Hammipatra) issued by the bank in her favour certifying bank's willingness to make available by way of loan rupees one lakh in her favour for running ration shop. There is no material on record to show that this letter was inserted by the Petitioner subsequent to the cut off date in the record of the Controller of Rationing. Except bald statement in the impugned order, no material in this behalf is produced on record to support this assertion or allegation.
32. The Appellate Authority or the Revisional Authority while setting aside the order under challenge is expected to deal with each and every adverse finding suffered by the person in whose favour the order is to be passed. The impugned order does not deal with any of the findings adverse to the Respondent No. 4, which led to rejection of her application for allotment of ration shop. The impugned order is therefore perfunctory and has passed in a most casual manner.
33. It appears from the record after building a judicial pressure on the Respondent No. 4, she, ultimately, produced her bank passbook on record. The entries in the passbook, unequivocally, demonstrates that the entries for the period after 13.10.2006 to 13.10.2007 are missing. The credit entry on 13.10.2007 is in the sum of Rs. 515/-. For the first time, cash Rs. 49,500/- appears to have been deposited in the account on 13.3.2008 making credit balance in the sum of Rs. 50,025/- on 13.3.2008. It is, thus, clear that on the date of the application or cut off date hardly sum of Rs. 515/- was available in the account of the Respondent No. 4. This aspect of the matter has been completely over- looked by the Respondent No. 3 while issuing direction for allotment of ration shop in favour of the Respondent No. 4.
34. The Petitioner has made a categorical statement on oath vide her affidavit dated 16.2.2008, wherein she has categorically stated that the Respondent No. 4 opened her bank account on 12.10.2006 showing the credit balance of Rs. 49,000/- by way of deposit in cash and Rs. 1,700/- by way of another credit on 13.10.2006. She has further made a statement that her enquiry revealed that the Respondent No. 4 was having about Rs. 500/- in her account. She withdrew Rs. 5000/- in the month of November, 2006, followed by other withdrawals of Rs. 20,000/- and Rs. 12,000/-. Thereafter, in the month of December,2006, she again withdrew Rs. 10,000/- and Rs. 3,200/- leaving credit balance of about Rs. 500/- only. She further pointed out that the Respondent No. 4 has made a statement on oath that the bank did not maintain record of her account for the period 13.10.2006 to 13.10.2007. As such entries of the withdrawals of the amount are not reflected in the passbook for the said period. It is, thus, clear that there was no evidence on record to demonstrate financial capability of the Respondent No. 4 to run ration shop. It is really beyond imagination that the Nationalized bank will not have record with respect to the account of the Respondent No. 4 alone for the period 13.10.2006 to 13.10.2007. A person who is conversant with the banking transactions will hardly believe the case sought to be made out by the Respondent No. 4. No bank certificate in this behalf is produced on record. If this aspect is considered in light of the conduct of the Respondent No. 4 leading to filing of the truncated passbook, initial attempt to avoid production thereof inspite of judicial order of the Court dated 7.8.2008 and ultimate production thereof only under the pressure built up by the Petitioner by issuing notice dated 26.6.2008 to produce document to seek compliance of the order of this Court dated 7.8.2008, then it would be clear that all the financial worth of the Respondent No. 4 was conveniently ignored by the Respondent No. 3 while allotting the ration shop in her favour. In this view of the matter, the impugned order to the extent it allots the ration shop in favour of the Respondent No. 4 is liable to be quashed and set aside.
35. Having said so, let me consider the merits of the case of the Petitioner to justify her prayer for restoration of the order of the Controller of Rationing, wherein the shop was allotted to her. It is not in dispute that the Petitioner falls in the category/priority No. 1 being a disabled person/woman. The report of the Deputy Controller shows the suitability of the shop premises proposed by the Petitioner. The financial worth of the Petitioner to run the ration shop was accepted by the Controller of Rationing which ultimately resulted in recommending her case for allotment. The Respondent No. 3 while setting aside the order in favour of the Petitioner took into account the credit entry in the passbook showing balance on 3.4.2007 so as to conclude that the passbook was produced subsequent to the cut off date. Assuming it to be so, now, the question is : was there any other evidence available on record to establish her financial capability to run ration shop. The Petitioner claims to have produced certificate (Hammipatra) dated 20.3.2007 issued by 'Shumbham Credit Co-operative Society Limited' guaranting grant of financial assistance of rupees one lakh, which according to the Respondent No. 3 was not produced on record along with the application and that it was inserted subsequent to the cut off date in the record of the Controller of Rationing. This finding is not supported by any material available on record. No material in this behalf is produced to support this assertion or allegation or finding recorded by the Respondent No. 3. One has to pose a question as to why the Petitioner would not produce a certificate dated 20.3.2007 along with her application when she was already in possession thereof. Neither the Deputy Controller of Rationing nor the Controller of Rationing has filed any affidavit on record to allege insertion of the document in their record. It is, therefore, necessary to conclude that this adverse finding recorded against the Petitioner in the impugned order is without any evidence and therefore, unsustainable.
36. Barring this adverse finding no other adverse finding is to be found so as to refuse the prayer of the Petitioner for restoration of order of allotment.
37. The learned Counsel for the Respondent No. 4 during the course of hearing tried to canvass that she was minor on the date of the application and sought to place reliance on the ration card. Firstly, the ration card cannot be the evidence of the date of birth. Secondly, if the ration card of the Respondent No. 4, placed on record is seen, then it will show that the age of Mr Surendra, her husband is shown as 18 years, whereas the age of the Respondent No. 4 (wife) is shown as 21 years which can hardly be justified. The Petitioner in order to effectively counter this submission has produced on record her birth certificate showing her date of birth as 28.3.1985. The submission thus made in this behalf has no substance. At any rate, it is not necessary to go into this aspect of the matter since no adverse finding in this behalf was recorded by either of the authorities below against the Petitioner. Judicial or quashi judicial order is required to be judged on the basis of findings recorded therein as held by the Apex Court in the case of Mohinder Singh Gill (cited supra).
38. In the result, impugned order passed by the Respondent No. 3 dated 8.2.2008 is quashed and set aside and the order dated 1.10.2007 is restored with direction to act upon the said order within a period of 15 days from the date of pronouncement of this order. Compliance report to be submitted within three weeks. Rule is made absolute in terms of this order with cost quantified in the sum of Rs. 25,000/- to be paid by the Respondent Nos. 1 and 4 in the ratio of 50:50 to the Petitioner. All concerned to act upon the authenticated copy of this order.
ACTION AGAINST THE DEPUTY SECRETARY OF THE STATE:
39. Before parting with the petition, let me examine the role of Shri S.Y. Kursange, the Dy. Secretary, Govt. of Maharashtra, Mumbai, who has stated on oath that the Respondent No. 4 complied with all the terms and conditions of the grant. Therefore, the order was rightly passed in favour of the Respondent No. 4 by the Respondent No. 3. Having dealt with the shortcomings in the claim of the Respondent No. 4 based on material available on record, Mr Kursange could not have filed false and misleading affidavit dated 17.3.2008 before this Court, merely to support the order of the Respondent No. 3. Mr Kursange, being the Government official was expected to be independent and impartial. He, owes his duty not only to the State Government but equally to this Court being a person holding high post of Deputy Secretary. He cannot escape the liability for having made false statement on oath so as to mislead this Court and to pollute the stream of administration of justice.
40. In the above view of the matter, Mr Kursange, Deputy Secretary to Government, Food, Civil Supplies and Consumer Protection Department, Mantralaya, Mumbai is liable to be proceeded with for having prima facie; committed an offence of perjury as well as contempt of this Court. Hence, issue show cause notice to Mr Kursange to show cause as to why suitable action should not be initiated against him returnable after three weeks. The learned A.G.P. is directed to communicate this order to Mr Kursange. At the same time, the Registrar General is also directed to issue independent notice in this behalf.
41. Stand over after three weeks to deal with the show cause notice issued to Mr Kursange.