Smt. Savitri Chandrakesh Pal Vs. State of Maharashtra, - Court Judgment

SooperKanoon Citationsooperkanoon.com/353094
SubjectService
CourtMumbai High Court
Decided OnMar-24-2009
Case NumberWrit Petition No. 4101 of 2007
JudgeV.C. Daga, J.
Reported in2009(4)MhLj406
ActsEssential Commodities Act, 1965 - Sections 3; Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995; Maharashtra Commodities (Regulation of Distribution) Order, 1975 - Schedule - Sections 24; Maharashtra Foodgrains Rationing (Second) Order, 1966; Constitution of India - Articles 226, 227, 323A and 323B; Bombay High Court Appellate Side Rules, 1966 - Rules 1, 2, 4, 17 and 18; Bombay High Court Appellate Side Rules, 1960
AppellantSmt. Savitri Chandrakesh Pal
RespondentState of Maharashtra, ;The Controller of Rationing, ;The Hon'ble Cabinet Minister, Food and Civil Su
Appellant AdvocatePoonam P. Bhosale, Adv.
Respondent AdvocateV.A. Gangal, Special Counsel and ;S.K. Chinchlikar, AGP and ;Ashok G. Gade, Adv. for respondent Nos. 1 and 3 and ;Uday Warunjikar and ;P.A. Pol, Advs. for respondent No. 4
Excerpt:
- - since the second draft was prepared with all the relevant records and it was well supported by merits and i approved the same. firstly, she submits that the impugned order is bad because it was passed after lapse of 14 months from the date of hearing, which ultimately, resulted in two orders running counter to each other. 3. she further submits that the matter was heard by one person whereas the order was passed by another as such the impugned order is clearly in breach of principles of natural justice and liable to be set aside on this count alone. she, thus, submits that the impugned order is clearly in breach of principles of natural justice as such unsustainable in law. 3 in revisional jurisdiction is held to be bad for want of jurisdiction, then the order passed by respondent no. the same consideration hold good even to the revision filed before the respondent no. in other words, the material supplied or shown to the decision making authority without disclosing it to the person against whom it is to be used clearly constitutes breach of principles of natural justice which is very much applicable to the quasi-judicial proceedings. on this count alone the impugned order is liable to be quashed and set aside holding it to be bad and illegal being in breach of principles of natural justice. the distribution of largesse of the state is for the common good and to subserve the common good of as many persons as possible.v.c. daga, j.1. rule, returnable forthwith.2. mr. gangal, special counsel appearing along with learned a.g.p. for respondent nos. 1 to 3 and mr. warunjikar with mr. pol for respondent no. 4 waived service.3. heard finally by consent of parties.4. perused petition, affidavits and counter affidavits.5. this petition is directed against the order dated 24th november, 2006 passed by the hon'ble minister for food and civil supply and consumer protection, mantralaya, mumbai, the respondent no. 3 whereby and whereunder the revision petition filed by the petitioner challenging the order of the controller of rationing, the respondent no. 2 dated 17th december, 2004 was dismissed.factural matrix:6. the factual matrix reveal that the controller of rationing, churchgate, mumbai, the respondent no. 2 herein had issued an advertisement in the local newspapers dated 8th november, 2002 notifying intention to make allotment of rationing shop under item no. 207/02 for the area pimpri pada, malad (east) mumbai. the last date for submission of the application by the applicants desirous of having allotment of the ration shop was 31st january, 2003.7. in response to the aforesaid advertisement, in all 22 applications were received by respondent no. 2 including applications of the petitioner and respondent no. 4 respectively.8. the respondent no. 2 has passed an order dated 22nd november, 2003, whereby and whereunder the ration shop was allotted to respondent no. 4 treating the said respondent falling under the category/priority no. 6.9. being aggrieved by the aforesaid order dated 22nd november, 2003, the petitioner, claiming to be an educated unemployed woman falling under category/priority no. 2, filed revision application before the hon'ble minister for food and civil supplies and consumer protection, government of maharashtra, the respondent no. 3 herein; to challenge the aforesaid order dated 22nd november, 2003 passed by respondent no. 2. the respondent no. 3 vide his order dated 2nd june, 2004 rejected revision application of the petitioner and thereunder confirmed the order of the respondent no. 2.10. being aggrieved by the aforesaid order of the respondent no. 3 confirming the order of respondent no. 2 allotting ration shop to the respondent no. 4, petitioner preferred writ petition no. 5891/2004 in this court under articles 226 and 227 of the constitution of india. this court, after hearing the parties, vide its order dated 25th august, 2004, was pleased to quash and set aside the order of the respondent nos. 3 dated 2nd june, 2004 and remanded the matter with certain directions to the respondent no. 2 for consideration afresh.11. the respondent no. 2 vide his order dated 17th december, 2004 claimed to have made enquiry through the regional office. based on the report of the regional office, he found that the authorised ration shops bearing nos. 42-g/159 and 42-g/264 were being run in two separate galas and not in one. with the result, the allotment of the ration shop in favour of respondent no. 4 was allowed to be continued.12. being aggrieved by the aforesaid order of the respondent no. 2 again revision application was filed by the present petitioner before the respondent no. 3. the hearing on merits was completed on 19th august, 2005. however, the order appears to have been passed on 24th november, 2006, practically, after a period of 14 months whereby and whereunder the revision application filed by the petitioner came to be rejected. with the result, allotment of ration shop in favour of respondent no. 4 was confirmed. the petitioner states that the copy of the said order was supplied to her on 5th april, 2007 i.e. after a period of 5 months, that too, after repeated approaches made to the office of the respondent no. 313. being aggrieved by the aforesaid order, present petition is filed under article 226 of the constitution of india on various amongst other grounds raised in the petition.shocking fact brought on record:14. the learned counsel for the petitioner, during the course of hearing, brought to the notice of this court two orders of the revisional authority, the respondent no. 3, one allowing revision and another rejecting the revision filed by the petitioner. these orders were taken on record.15. having seen aforesaid shocking material brought on record, this court naturally felt the necessity to investigate the same. consequently, notice was issued to the chief secretary, state of maharashtra vide order dated 13th august, 2003 directing him to make enquiry in the matter. pursuant to this direction, respondent no. 3; the chief secretary; shri a.a. godbole, section officer; and shri s.y. kursange, deputy secretary of the department have filed their respective affidavits. all these affidavits read together revealed a very sorry state of affairs with regard to the mode of decision making process adopted in the mantralaya.16. it came on record through the above affidavits that when the matter was heard by respondent no. 3, shri s.y. kursange, deputy secretary was present and received instruction from respondent no. 3 for preparing draft of the order. he, in turn, directed shri a.a. godbole, desk officer to prepare draft order. accordingly, mr. godbole prepared draft order dictating it to one shri suryakant gole, clerk allowing revision filed by the petitioner. it has further come on record that shri s.y. kursange, deputy secretary again instructed shri godbole to prepare a revised draft rejecting revision application. this business of preparing one draft allowing revision application and another rejecting revision application revealed that none of these orders were dictated by respondent no. 3, the hon'ble minister himself, who had heard revision application filed by the petitioner. both draft orders were prepared by shri a.a. godbole, desk officer, who was not present at the time of hearing. he was completely unaware of the rival contentions canvassed by the parties. the respondent no. 3, the hon'ble minister has filed an affidavit dated 2nd september, 2008, the relevant part of which reads as under:. after hearing the parties in the revision petition, i did not dictate order neither it is possible for me to dictate each and every order considering the voluminous work of my ministry. the practice followed by my department after hearing the revision application, i asked my departmental officers to go through the merits of the case and submit a note accordingly for approval....'(emphasis supplied)the hon'ble minister has further stated in para-4 of the affidavit that:.accordingly, my department had prepare the first draft for my approval which is at 'exhibit-h' to this writ petition. however, the said draft was not brought before me for my approval. the deputy secretary and his subordinate officers discussed the matter with me with reference to the application of the respondent no. 4 dated the 5th september, 2006. during the course, of discussion, i directed them to check up whether the proposed shop was an unauthorised structure or otherwise. hence, it was found necessary to verify the brihanmumbai municipal corporation's tax receipt of the proposed shop.i state and submit that the respondent no. 4 has submitted the assessment certificate of the brihanmumbai municipal corporation of the extended area of 200 sq. fts. in view of this subsequent evidence, my department changed the first draft and the second draft was submitted for my approval. since the second draft was prepared with all the relevant records and it was well supported by merits and i approved the same...(emphasis supplied)17. this court, having seen the mode and manner of decision making process and the procedure adopted for deciding the appeals and revision applications, this court was compelled to pass the order dated 4th september 2008 directing the state government to place on record the procedure, normally, followed and adopted by all the departments of the state government of maharashtra while hearing and deciding appeals and/or revisions.18. after the aforesaid order dated 4th september, 2008, shri v.a. gangal, special counsel appeared for the state and informed this court that a committee has been constituted by the state government consisting of the chief secretary, law and judiciary with the officers of general administration department with shri v.a. gangal, advocate and special counsel for the state of maharashtra, to streamline the procedure of hearing and deciding appeals and/or revisions by the officers of the state of maharashtra including the ministers of the respective departments.19. having noted the anxiety of the state government to streamline the procedure through the committee constituted by the government, this court felt that mr. anand grover, who was appointed as amicus curie to assist this court, should also be included in the said committee. accordingly, mr. grover was included in the committee. the committee was granted time to submit their report. the said committee submitted its report. it was accepted by this court by a separate order wherein guidelines are framed and the procedure is laid down prescribing the mode and manner of hearing the revisions and/or appeals by the state government and functionaries of the state so as to streamline the decision making process. since a separate judgment is being passed in that behalf, i do not propose to dwell on this issue any further. now, let me deal with the petition in hand based on rival submissions.preliminary objections:20. now, turning to the facts of the case at hand. when the hearing of this petition commenced on merits, learned counsel appearing for respondent no. 4 raised a preliminary objection to the jurisdiction of the single judge to entertain and hear this petition contending that the petition against the impugned order of the respondent no. 3 would lie before the division bench since neither the maharashtra commodities (regulation of distribution) order, 1975 nor the maharashtra foodgrains rationing (second) order, 1966 which has been passed under section 3 of the essential commodities act, 1965 is listed in any of the 43 clauses under rule 18 of chapter xvii of the bombay high court appellate side rules, 1966, as such, this petition does not lie before the single judge. it should, therefore be placed before the division bench for hearing.21. per contra, learned counsel appearing for the petitioner, countered the above submission relying upon the judgment of the division bench of this court in principal, micky school v. state of maharashtra : 2006(1)bomcr694 , and urged that the preliminary objection is devoid of any substance. she further pointed out that the subject judgment is followed by the division bench of this court in ajabrao v. principal, kala vanijya mahavidyalaya : 2008(6)mhlj436 and m.s.co-op. bank ltd. v. state of maharashtra : 2008(6)mhlj463 .22. mr. gangal, learned special counsel appearing for the state of maharashtra did not agree with the submission made by learned counsel for respondent no. 4. in his submission the single judge alone has a jurisdiction to entertain and decide the present petition.decision on preliminary objection:23. having heard both views, the preliminary objection raised by respondent no. 4 needs to be overruled in view of the judgment of the division bench in the case of principal, micky school (supra), paras-10 and 11 of which read as under:10. then comes rule 18 of chapter xvii which provides that notwithstanding anything contained in rule 1, 4 and 17 of this chapter i.e. chapter xvii applications under article 226 or 227 or under articles 226 & 227 may be disposed of by the learned single judge of this court and proceeds to enumerate the categories of orders or enactments which are to be dealt with by the learned single judge. it will thus be seen that provisions of rule 18 of chapter xvii is a provision made in relation to rules in chapter xvii and therefore are rules which as contemplated by rules 1 and 2 of chapter i provide for hearing by a learned single bench. as we have noticed above that rules 1 and 2 both of chapter i provide for exception in cases where it is otherwise provided for by these rules. language of rules 17 and 18 in the circumstances is required to be noted. rule 18 of chapter xvii says notwithstanding anything contained in rule 1, 4 and 17 of this chapter i.e. chapter xvii the following applications mentioned in the said rule are to be heard by the learned single judge. it means rule 18 is a provision which is a case where it is otherwise provided by these rules that the matters can be heard by the learned single judge. clauses 1 to 43 of this rule 18 provide various categories of orders passed by under various enactments which are required to be dealt with by a learned single judge of this court. sub-clause 3 however is omnibus clause which reads thus:the decrees or the orders passed by any sub-ordinate court (or by any quasi judicial authority) in any suit or proceedings (including suits and proceedings under any special or local laws), but excluding those arising out of the parsi chief matrimonial court.according to these provisions therefore any decree or order passed by any subordinate court or quasi judicial tribunal in any suit or proceedings including suit or proceedings in any suit or legal law are to be dealt with by a single judge. it will thus be clear from the conjoined reading of all the relevant provisions that according to rule 18 of chapter xvii all petitions mentioned in that rule in sub-clauses 1, 2 and 4 to 43 are to be dealt with by a single judge and this will not present any difficulty in classification. the problem as has been raised in the present case arises on interpretation of chapter xvii rule 18 clause 3 quoted above. we have explained how this rule 18 operates.11. in our opinion, the position in regard to hearing of writ petitions under bombay high court appellate side rules, 1960 is clear. all writ petitions under articles 226 and/or 227 or under article 226 or under article 227 are to be heard by learned single judge of this court. exceptions having been provided by clause 2-b of chapter i and ratio laid down by supreme court in relation to articles 323a and b. therefore writ petitions covered by clause 2- b, writ petitions arising out of orders made by administrative tribunals established under 1985 act and orders passed by such special tribunals as are created under the constitution and all other matters are required to be herd by the learned single bench. the order impugned in the present petition is passed under the provisions of persons with disabilities (equal opportunities protection of rights and full participation) act, 1995 which is a special law enacted for protection of persons mentioned therein. it is therefore a special enactment or law and the order made thereunder is squarely covered by the provisions of clause 3 of rule 18 of chapter xvii being the order made by an authority under special act. the registry is therefore directed to place the matter before the appropriate bench. interim order already granted to continue.(emphasis supplied)24. in the above view of the matter, the preliminary objection raised by respondent no. 4. challenging jurisdiction of the single judge stands overruled.rival submissions on merits:25. learned counsel appearing for the petitioner while challenging the impugned order urged that it is in breach of the principles of natural justice. firstly, she submits that the impugned order is bad because it was passed after lapse of 14 months from the date of hearing, which ultimately, resulted in two orders running counter to each other. according to her, order ought to have been passed within a period of 8 to 10 weeks as per the law laid down by the supreme court in the case of anil rai v. state of bihar followed by this court in the case of devang rasiklal vora v. union bank of india : 2003ecr658(bombay) .26. she further submits that the impugned order is also liable to be quashed and set aside since two orders have come on record, one allowing the revision and another rejecting the revision. she urged that this court should read between the line and try to find the reasons for two orders running counter to each other. according to her, at any rate, impugned order needs to be quashed and set aside as no judicial mind can approve such mode and manner of the decision making process adopted by the respondent no. 3. she further submits that the matter was heard by one person whereas the order was passed by another as such the impugned order is clearly in breach of principles of natural justice and liable to be set aside on this count alone.27. learned counsel appearing for the petitioner submits that para-5 of the affidavit dated 2nd september, 2008 filed by the hon'ble minister, the respondent no. 3 makes it unequivocally clear that after the case was closed for final order, fresh information was sought by him from the brihan mumbai municipal corporation, that too, without notice to the petitioner. the information received was adverse to the interest of the petitioner and that information was used against the petitioner to dismiss the revision application. she, thus, submits that the impugned order is clearly in breach of principles of natural justice as such unsustainable in law.28. mr. warunjikar, learned counsel appearing for respondent no. 4, in reply, urged that the impugned order is without jurisdiction as such it cannot stand to the scrutiny of law. he submits that the revision application itself was not maintainable before the state government against the order of the respondent no. 2 dated 17th december, 2004 since it was passed pursuant to the order of this court dated 25th august, 2004 in writ petition no. 5891/2004. he, thus, submits that, if the order passed by respondent no. 3 in revisional jurisdiction is held to be bad for want of jurisdiction, then the order passed by respondent no. 2 dated 17th december, 2004 would alone hold the field. he, thus, submits that the impugned order passed by the respondent no. 3 be quashed and set aside declaring the order passed by respondent no. 2 dated 17th december, 2004 as legal and valid holding the field and the allotment of ration shop in favour of the respondent no. 4 under this order be treated as valid since there is no challenge to the said order in this petition.29. mr. gangal, learned special counsel appearing for the state and learned counsel for the petitioner, in rejoinder, jointly urged that the revision was very much maintainable before the state government. both of them submit that the impugned order for the various strange reasons surfaced on record be set aside and the matter be remitted back for reconsideration to the revisional authority.consideration:30. having heard learned counsel for the parties, the submission made by learned counsel for respondent no. 4 that the revision application was not maintainable before respondent no. 3 cannot be accepted in view of division bench judgment of this court in writ petition no. 2305/1998 dated 18th december, 2005 (smt. anita deoraj naidu v. the state of maharashtra and ors.) (unreported); wherein this court was pleased to hold that revision filed under clause 24 of the maharashtra schedule commodities (regulation of distribution) order 1975 is very much maintainable before the state government against the order passed by the commissioner. by virtue of this judgment, judgment of the learned single judge in writ petition nos. 1485/2002 and 1913/2002 holding that revision under section 24 of the maharashtra schedule commodities (regulation of distribution) order 1975 was not maintainable before the state government was set aside. the same consideration hold good even to the revision filed before the respondent no. 3 said to be under clause 30 of the maharashtra foodgrains rationing (second) order 1966, which has been, in turn, passed under section 3 of the essential commodities act, 1965.31. the learned counsel for the petitioner is justified in making grievance that the adverse material collected by respondent no. 3 extracted in para- 27 (supra) in the form of assessment certificate of the brihan mumbai municipal corporation was used against the petitioner without disclosing it to the petitioner. needless to mention that in view of the apex court judgment in the case of union of india v. mohammed ramzan khan : (1991)illj29sc , in any quasi judicial proceeding non-supply of adverse material to the affected person but supply thereof to the authority taking decision against him on that basis constitutes violation of rules of natural justice. in other words, the material supplied or shown to the decision making authority without disclosing it to the person against whom it is to be used clearly constitutes breach of principles of natural justice which is very much applicable to the quasi-judicial proceedings. on this count alone the impugned order is liable to be quashed and set aside holding it to be bad and illegal being in breach of principles of natural justice.32. the sole contention raised by respondent no. 4 on merits that the order of respondent no. 2 dated 17th december, 2004 would hold field in the event the order of the revisional authority, namely, that of respondent no. 3 is set aside holding it to be without jurisdiction is also misplaced. on the touchstone of the doctrine of merger, which is very much applicable to the revision petitions in view of the apex court judgment in the case of kunhayammed v. state of kerala : [2000]245itr360(sc) the submission has no merit. in the said judgment, the apex court has ruled as under:43. ... ... ...to sub up our conclusions are:(i) where an appeal or revision is proved against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the sub-ordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.33. in my considered view, the revision petition filed before the state was very much maintainable. the same was rightly entertained. on its decision on merits, the order of the lower authority, namely, that of respondent no. 2 merged in the revisional order. since the revisional authority has set aside the order of the respondent no. 2, it merged into the order of the revisional authority. thus, the submission made in this behalf by mr. warunjikar that the order of the respondent no. 2 would hold the field in the event revisional order is set aside also needs to be rejected being without any substance.34. having said so, let me now turn to the question relating to the grant of relief which the petitioner is claiming in the petition.35. the factual matrix surfaced on record show that the applications for allotment of ration shop were invited in the month of november, 2002. almost more than six years have been consumed by this litigation. the agreement relating to the shop premises of the petitioner, which was shown to be available for running ration shop, was for a duration of seven years commencing from 5th december, 2001. the said period has expired on 4th december, 2008. as on date, agreement is not in existence. it has expired. there is no material on record to show renewal thereof. in the circumstances, there is no material on record to suggest that the shop premises of the petitioner is still available for opening and running ration shop. assuming to be in possession of the petitioner, core question would be in what capacity she is in possession. once the agreement has expired, possession of the subject shop cannot be said to be legal and valid. one cannot presume renewal of the agreement in absence of positive evidence. no material in this behalf is available on record. thus, it cannot be concluded that the shop premises is still legally available with the petitioner for running the ration shop, if allotted.36. so far as respondent no. 4 is concerned, no document or evidence is on record to indicate as to in what capacity the said society came in possession of the subject shop premises. the material on record only suggests an agreement dated 4th may, 2002. one does not know the nature and/or life of the said agreement. one does not know whether it is agreement of lease or rent or licence or agreement to purchase the property with possession. no documentary evidence in this behalf is available on record. one does not know whether or not the said agreement is still alive and holding the field. one cannot imagine that the subject shop premises would remain unused or under lock and key for such a period of more than six and half years as such claim of the respondent no. 4 by passage of time has lost its significance.37. on the aforesaid backdrop, this court has to consider the effect of long gap of 6 1/2 years consumed by the present litigation. this court has to consider as to whether any useful purpose would be served by remanding the matter back to the authorities below for consideration afresh.38. having noticed the factual matrix, having indicated the nature of material available on record including absence of positive material to decide rival claims on merits, i am of the considered view that no useful purpose would be served by remanding the matter back for consideration afresh to the authorities below.39. the state government has laid down the guidelines prescribing eligibility criteria for allotting ration shops. as a part of government's policy of the distribution of its largesse government have prescribed the eligibility criteria. the persons answering the eligibility criteria according to the priority fixed can only be considered for allotting ration shop. persons dehors the guidelines have no independent right to have business or avocation in the form of running ration shop. the distribution of largesse of the state is for the common good and to subserve the common good of as many persons as possible. economic and social justice as envisaged in the preamble of the constitution, is sought to be achieved and there is a reasonable nexus between the object and the prescription of the eligibility criteria as prescribed in the guidelines.40. during the intervening period of 6 1/2 years, the other citizens of the subject ration area must have acquired or built shop premises. they would also be entitled to have right to apply and get their claim considered in accordance with law.41. in the above premises, for the reasons stated, i decline to remand the matter back for consideration afresh by the authorities under the act. on the contrary, i direct respondent no. 1 to issue fresh advertisement inviting fresh applications for consideration afresh on their own merits in accordance with law.42. in the result, impugned order dated 24th november, 2006 passed by the respondent no. 3 is quashed and set aside. as a consequence thereof, the order dated 17th december, 2004 passed by respondent no. 2 would not survive. respondent no. 1 to comply with the direction given herein immediately after the expiry of code of conduct which is prevailing as on date. it is made clear that the petitioner and respondent no. 4 shall also be entitled to compete with others but only after making proper applications in response to the fresh advertisement inviting applications. none of the orders passed in the present proceedings either in favour or against the parties to the petition shall come in their way.43. rule is made absolute in terms of this order with costs quantified in the sum of rs. 30,000/- to be paid by the state government to the petitioner which the respondent no. 3 shall reimburse to the state from his own funds being responsible for giving birth to the shocking fact emerged on record. the secretary, food and civil supply and consumer protection, government of maharashtra, mumbai to report compliance of this order within four weeks from today.
Judgment:

V.C. Daga, J.

1. Rule, returnable forthwith.

2. Mr. Gangal, special counsel appearing along with learned A.G.P. for respondent Nos. 1 to 3 and Mr. Warunjikar with Mr. Pol for respondent No. 4 waived service.

3. Heard finally by consent of parties.

4. Perused petition, affidavits and counter affidavits.

5. This petition is directed against the order dated 24th November, 2006 passed by the Hon'ble Minister for Food and Civil Supply and Consumer Protection, Mantralaya, Mumbai, the respondent No. 3 whereby and whereunder the revision petition filed by the petitioner challenging the order of the Controller of Rationing, the respondent No. 2 dated 17th December, 2004 was dismissed.

Factural Matrix:

6. The factual matrix reveal that the Controller of Rationing, Churchgate, Mumbai, the respondent No. 2 herein had issued an advertisement in the local newspapers dated 8th November, 2002 notifying intention to make allotment of rationing shop under Item No. 207/02 for the area Pimpri Pada, Malad (East) Mumbai. The last date for submission of the application by the applicants desirous of having allotment of the ration shop was 31st January, 2003.

7. In response to the aforesaid advertisement, in all 22 applications were received by respondent No. 2 including applications of the petitioner and respondent No. 4 respectively.

8. The respondent No. 2 has passed an order dated 22nd November, 2003, whereby and whereunder the ration shop was allotted to respondent No. 4 treating the said respondent falling under the Category/Priority No. 6.

9. Being aggrieved by the aforesaid order dated 22nd November, 2003, the petitioner, claiming to be an educated unemployed woman falling under Category/Priority No. 2, filed revision application before the Hon'ble Minister for Food and Civil Supplies and Consumer Protection, Government of Maharashtra, the respondent No. 3 herein; to challenge the aforesaid order dated 22nd November, 2003 passed by respondent No. 2. The respondent No. 3 vide his order dated 2nd June, 2004 rejected revision application of the petitioner and thereunder confirmed the order of the respondent No. 2.

10. Being aggrieved by the aforesaid order of the respondent No. 3 confirming the order of respondent No. 2 allotting ration shop to the respondent No. 4, petitioner preferred Writ Petition No. 5891/2004 in this Court under Articles 226 and 227 of the Constitution of India. This Court, after hearing the parties, vide its order dated 25th August, 2004, was pleased to quash and set aside the order of the respondent Nos. 3 dated 2nd June, 2004 and remanded the matter with certain directions to the respondent No. 2 for consideration afresh.

11. The respondent No. 2 vide his order dated 17th December, 2004 claimed to have made enquiry through the regional office. Based on the report of the regional office, he found that the authorised ration shops bearing Nos. 42-G/159 and 42-G/264 were being run in two separate Galas and not in one. With the result, the allotment of the ration shop in favour of respondent No. 4 was allowed to be continued.

12. Being aggrieved by the aforesaid order of the respondent No. 2 again revision application was filed by the present petitioner before the respondent No. 3. The hearing on merits was completed on 19th August, 2005. However, the order appears to have been passed on 24th November, 2006, practically, after a period of 14 months whereby and whereunder the revision application filed by the petitioner came to be rejected. With the result, allotment of ration shop in favour of respondent No. 4 was confirmed. The petitioner states that the copy of the said order was supplied to her on 5th April, 2007 i.e. after a period of 5 months, that too, after repeated approaches made to the office of the respondent No. 3

13. Being aggrieved by the aforesaid order, present petition is filed under Article 226 of the Constitution of India on various amongst other grounds raised in the petition.

Shocking Fact brought on Record:

14. The learned Counsel for the petitioner, during the course of hearing, brought to the notice of this Court two orders of the revisional authority, the respondent No. 3, one allowing revision and another rejecting the revision filed by the petitioner. These orders were taken on record.

15. Having seen aforesaid shocking material brought on record, this Court naturally felt the necessity to investigate the same. Consequently, notice was issued to the Chief Secretary, State of Maharashtra vide order dated 13th August, 2003 directing him to make enquiry in the matter. Pursuant to this direction, respondent No. 3; the Chief Secretary; Shri A.A. Godbole, Section Officer; and Shri S.Y. Kursange, Deputy Secretary of the department have filed their respective affidavits. All these affidavits read together revealed a very sorry state of affairs with regard to the mode of decision making process adopted in the Mantralaya.

16. It came on record through the above affidavits that when the matter was heard by respondent No. 3, Shri S.Y. Kursange, Deputy Secretary was present and received instruction from respondent No. 3 for preparing draft of the order. He, in turn, directed Shri A.A. Godbole, Desk Officer to prepare draft order. Accordingly, Mr. Godbole prepared draft order dictating it to one Shri Suryakant Gole, Clerk allowing revision filed by the petitioner. It has further come on record that Shri S.Y. Kursange, Deputy Secretary again instructed Shri Godbole to prepare a revised draft rejecting revision application. This business of preparing one draft allowing revision application and another rejecting revision application revealed that none of these orders were dictated by respondent No. 3, the Hon'ble Minister himself, who had heard revision application filed by the petitioner. Both draft orders were prepared by Shri A.A. Godbole, Desk Officer, who was not present at the time of hearing. He was completely unaware of the rival contentions canvassed by the parties. The respondent No. 3, the Hon'ble Minister has filed an affidavit dated 2nd September, 2008, the relevant part of which reads as under:. After hearing the parties in the Revision Petition, I did not dictate order neither it is possible for me to dictate each and every order considering the voluminous work of my ministry. The practice followed by my department after hearing the Revision Application, I asked my departmental officers to go through the merits of the case and submit a note accordingly for approval....'

(Emphasis supplied)

The Hon'ble Minister has further stated in para-4 of the affidavit that:.Accordingly, my department had prepare the first draft for my approval which is at 'Exhibit-h' to this Writ Petition. However, the said draft was not brought before me for my approval. The Deputy Secretary and his subordinate officers discussed the matter with me with reference to the Application of the Respondent No. 4 dated the 5th September, 2006. During the course, of discussion, I directed them to check up whether the proposed shop was an unauthorised structure or otherwise. Hence, it was found necessary to verify the Brihanmumbai Municipal Corporation's tax receipt of the proposed shop.

I state and submit that the Respondent No. 4 has submitted the Assessment Certificate of the Brihanmumbai Municipal Corporation of the extended area of 200 sq. fts. In view of this subsequent evidence, my department changed the first draft and the second draft was submitted for my approval. Since the second draft was prepared with all the relevant records and it was well supported by merits and I approved the same...

(Emphasis supplied)

17. This Court, having seen the mode and manner of decision making process and the procedure adopted for deciding the appeals and revision applications, this Court was compelled to pass the order dated 4th September 2008 directing the State Government to place on record the procedure, normally, followed and adopted by all the departments of the State Government of Maharashtra while hearing and deciding appeals and/or revisions.

18. After the aforesaid order dated 4th September, 2008, Shri V.A. Gangal, Special Counsel appeared for the State and informed this Court that a committee has been constituted by the State Government consisting of the Chief Secretary, Law and Judiciary with the officers of General Administration Department with Shri V.A. Gangal, Advocate and Special Counsel for the State of Maharashtra, to streamline the procedure of hearing and deciding appeals and/or revisions by the officers of the State of Maharashtra including the Ministers of the respective departments.

19. Having noted the anxiety of the State Government to streamline the procedure through the committee constituted by the Government, this Court felt that Mr. Anand Grover, who was appointed as Amicus Curie to assist this Court, should also be included in the said committee. Accordingly, Mr. Grover was included in the committee. The committee was granted time to submit their report. The said committee submitted its report. It was accepted by this Court by a separate order wherein guidelines are framed and the procedure is laid down prescribing the mode and manner of hearing the revisions and/or appeals by the State Government and functionaries of the State so as to streamline the decision making process. Since a separate judgment is being passed in that behalf, I do not propose to dwell on this issue any further. Now, let me deal with the petition in hand based on rival submissions.

Preliminary Objections:

20. Now, turning to the facts of the case at hand. When the hearing of this petition commenced on merits, learned Counsel appearing for respondent No. 4 raised a preliminary objection to the jurisdiction of the Single Judge to entertain and hear this petition contending that the petition against the impugned order of the respondent No. 3 would lie before the Division Bench since neither the Maharashtra Commodities (Regulation of Distribution) Order, 1975 nor the Maharashtra Foodgrains Rationing (Second) Order, 1966 which has been passed under Section 3 of the Essential Commodities Act, 1965 is listed in any of the 43 clauses under Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1966, as such, this petition does not lie before the Single Judge. It should, therefore be placed before the Division Bench for hearing.

21. Per contra, learned Counsel appearing for the petitioner, countered the above submission relying upon the judgment of the Division Bench of this Court in Principal, Micky School v. State of Maharashtra : 2006(1)BomCR694 , and urged that the preliminary objection is devoid of any substance. She further pointed out that the subject judgment is followed by the Division Bench of this Court in Ajabrao v. Principal, Kala Vanijya Mahavidyalaya : 2008(6)MhLj436 and M.S.Co-op. Bank Ltd. v. State of Maharashtra : 2008(6)MhLj463 .

22. Mr. Gangal, learned special counsel appearing for the State of Maharashtra did not agree with the submission made by learned Counsel for respondent No. 4. In his submission the Single Judge alone has a jurisdiction to entertain and decide the present petition.

Decision on Preliminary Objection:

23. Having heard both views, the preliminary objection raised by respondent No. 4 needs to be overruled in view of the judgment of the Division Bench in the case of Principal, Micky School (supra), paras-10 and 11 of which read as under:

10. Then comes Rule 18 of Chapter XVII which provides that notwithstanding anything contained in Rule 1, 4 and 17 of this Chapter i.e. Chapter XVII applications under Article 226 or 227 or under Articles 226 & 227 may be disposed of by the learned Single Judge of this Court and proceeds to enumerate the categories of orders or enactments which are to be dealt with by the learned Single Judge. It will thus be seen that provisions of Rule 18 of Chapter XVII is a provision made in relation to rules in Chapter XVII and therefore are rules which as contemplated by Rules 1 and 2 of Chapter I provide for hearing by a learned Single Bench. As we have noticed above that Rules 1 and 2 both of Chapter I provide for exception in cases where it is otherwise provided for by these rules. Language of Rules 17 and 18 in the circumstances is required to be noted. Rule 18 of Chapter XVII says notwithstanding anything contained in Rule 1, 4 and 17 of this Chapter i.e. Chapter XVII the following applications mentioned in the said rule are to be heard by the learned Single Judge. It means Rule 18 is a provision which is a case where it is otherwise provided by these rules that the matters can be heard by the learned Single Judge. Clauses 1 to 43 of this Rule 18 provide various categories of orders passed by under various enactments which are required to be dealt with by a learned Single Judge of this Court. Sub-clause 3 however is omnibus clause which reads thus:

The decrees or the orders passed by any Sub-ordinate Court (or by any quasi judicial Authority) in any suit or proceedings (including suits and proceedings under any Special or Local Laws), but excluding those arising out of the Parsi Chief Matrimonial Court.According to these provisions therefore any decree or order passed by any subordinate Court or quasi judicial Tribunal in any suit or proceedings including suit or proceedings in any suit or legal law are to be dealt with by a Single Judge. It will thus be clear from the conjoined reading of all the relevant provisions that according to Rule 18 of Chapter XVII all petitions mentioned in that rule in Sub-clauses 1, 2 and 4 to 43 are to be dealt with by a Single Judge and this will not present any difficulty in classification. The problem as has been raised in the present case arises on interpretation of Chapter XVII Rule 18 Clause 3 quoted above. We have explained how this Rule 18 operates.

11. In our opinion, the position in regard to hearing of writ petitions under Bombay High Court Appellate Side Rules, 1960 is clear. All writ petitions under Articles 226 and/or 227 or under Article 226 or under Article 227 are to be heard by learned Single Judge of this Court. Exceptions having been provided by Clause 2-B of Chapter I and ratio laid down by Supreme Court in relation to Articles 323A and B. Therefore writ petitions covered by Clause 2- B, writ petitions arising out of orders made by Administrative Tribunals established under 1985 Act and orders passed by such Special Tribunals as are created under the Constitution and all other matters are required to be herd by the learned Single Bench. The order impugned in the present petition is passed under the provisions of Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 which is a special law enacted for protection of persons mentioned therein. It is therefore a special enactment or law and the order made thereunder is squarely covered by the provisions of Clause 3 of Rule 18 of Chapter XVII being the order made by an authority under Special Act. The Registry is therefore directed to place the matter before the appropriate bench. Interim order already granted to continue.

(Emphasis supplied)

24. In the above view of the matter, the preliminary objection raised by respondent No. 4. challenging jurisdiction of the Single Judge stands overruled.

Rival Submissions on merits:

25. Learned Counsel appearing for the petitioner while challenging the impugned order urged that it is in breach of the principles of natural justice. Firstly, she submits that the impugned order is bad because it was passed after lapse of 14 months from the date of hearing, which ultimately, resulted in two orders running counter to each other. According to her, order ought to have been passed within a period of 8 to 10 weeks as per the law laid down by the Supreme Court in the case of Anil Rai v. State of Bihar followed by this Court in the case of Devang Rasiklal Vora v. Union Bank of India : 2003ECR658(Bombay) .

26. She further submits that the impugned order is also liable to be quashed and set aside since two orders have come on record, one allowing the revision and another rejecting the revision. She urged that this Court should read between the line and try to find the reasons for two orders running counter to each other. According to her, at any rate, impugned order needs to be quashed and set aside as no judicial mind can approve such mode and manner of the decision making process adopted by the respondent No. 3. She further submits that the matter was heard by one person whereas the order was passed by another as such the impugned order is clearly in breach of principles of natural justice and liable to be set aside on this count alone.

27. Learned Counsel appearing for the petitioner submits that para-5 of the affidavit dated 2nd September, 2008 filed by the Hon'ble Minister, the respondent No. 3 makes it unequivocally clear that after the case was closed for final order, fresh information was sought by him from the Brihan Mumbai Municipal Corporation, that too, without notice to the petitioner. The information received was adverse to the interest of the petitioner and that information was used against the petitioner to dismiss the revision application. She, thus, submits that the impugned order is clearly in breach of principles of natural justice as such unsustainable in law.

28. Mr. Warunjikar, learned Counsel appearing for respondent No. 4, in reply, urged that the impugned order is without jurisdiction as such it cannot stand to the scrutiny of law. He submits that the revision application itself was not maintainable before the State Government against the order of the respondent No. 2 dated 17th December, 2004 since it was passed pursuant to the order of this Court dated 25th August, 2004 in Writ Petition No. 5891/2004. He, thus, submits that, if the order passed by respondent No. 3 in revisional jurisdiction is held to be bad for want of jurisdiction, then the order passed by respondent No. 2 dated 17th December, 2004 would alone hold the field. He, thus, submits that the impugned order passed by the respondent No. 3 be quashed and set aside declaring the order passed by respondent No. 2 dated 17th December, 2004 as legal and valid holding the field and the allotment of ration shop in favour of the respondent No. 4 under this order be treated as valid since there is no challenge to the said order in this petition.

29. Mr. Gangal, learned special counsel appearing for the State and learned Counsel for the petitioner, in rejoinder, jointly urged that the revision was very much maintainable before the State Government. Both of them submit that the impugned order for the various strange reasons surfaced on record be set aside and the matter be remitted back for reconsideration to the revisional authority.

Consideration:

30. Having heard learned Counsel for the parties, the submission made by learned Counsel for respondent No. 4 that the revision application was not maintainable before respondent No. 3 cannot be accepted in view of Division Bench judgment of this Court in Writ Petition No. 2305/1998 dated 18th December, 2005 (Smt. Anita Deoraj Naidu v. The State of Maharashtra and Ors.) (unreported); wherein this Court was pleased to hold that revision filed under Clause 24 of the Maharashtra Schedule Commodities (Regulation of Distribution) Order 1975 is very much maintainable before the State Government against the order passed by the Commissioner. By virtue of this judgment, judgment of the learned Single Judge in Writ Petition Nos. 1485/2002 and 1913/2002 holding that revision under Section 24 of the Maharashtra Schedule Commodities (Regulation of Distribution) Order 1975 was not maintainable before the State Government was set aside. The same consideration hold good even to the revision filed before the respondent No. 3 said to be under Clause 30 of the Maharashtra Foodgrains Rationing (Second) Order 1966, which has been, in turn, passed under Section 3 of the Essential Commodities Act, 1965.

31. The learned Counsel for the petitioner is justified in making grievance that the adverse material collected by respondent No. 3 extracted in para- 27 (supra) in the form of assessment certificate of the Brihan Mumbai Municipal Corporation was used against the petitioner without disclosing it to the petitioner. Needless to mention that in view of the Apex Court judgment in the case of Union of India v. Mohammed Ramzan Khan : (1991)ILLJ29SC , in any quasi judicial proceeding non-supply of adverse material to the affected person but supply thereof to the authority taking decision against him on that basis constitutes violation of rules of natural justice. In other words, the material supplied or shown to the decision making authority without disclosing it to the person against whom it is to be used clearly constitutes breach of principles of natural justice which is very much applicable to the quasi-judicial proceedings. On this count alone the impugned order is liable to be quashed and set aside holding it to be bad and illegal being in breach of principles of natural justice.

32. The sole contention raised by respondent No. 4 on merits that the order of respondent No. 2 dated 17th December, 2004 would hold field in the event the order of the revisional authority, namely, that of respondent No. 3 is set aside holding it to be without jurisdiction is also misplaced. On the touchstone of the doctrine of merger, which is very much applicable to the revision petitions in view of the Apex Court judgment in the case of Kunhayammed v. State of Kerala : [2000]245ITR360(SC) the submission has no merit. In the said judgment, the Apex Court has ruled as under:

43. ... ... ...

To sub up our conclusions are:(i) Where an appeal or revision is proved against an order passed by a Court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the sub-ordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.

33. In my considered view, the revision petition filed before the State was very much maintainable. The same was rightly entertained. On its decision on merits, the order of the lower authority, namely, that of respondent No. 2 merged in the revisional order. Since the revisional authority has set aside the order of the respondent No. 2, it merged into the order of the revisional authority. Thus, the submission made in this behalf by Mr. Warunjikar that the order of the respondent No. 2 would hold the field in the event revisional order is set aside also needs to be rejected being without any substance.

34. Having said so, let me now turn to the question relating to the grant of relief which the petitioner is claiming in the petition.

35. The factual matrix surfaced on record show that the applications for allotment of ration shop were invited in the month of November, 2002. Almost more than six years have been consumed by this litigation. The agreement relating to the shop premises of the petitioner, which was shown to be available for running ration shop, was for a duration of seven years commencing from 5th December, 2001. The said period has expired on 4th December, 2008. As on date, agreement is not in existence. It has expired. There is no material on record to show renewal thereof. In the circumstances, there is no material on record to suggest that the shop premises of the petitioner is still available for opening and running ration shop. Assuming to be in possession of the petitioner, core question would be in what capacity she is in possession. Once the agreement has expired, possession of the subject shop cannot be said to be legal and valid. One cannot presume renewal of the agreement in absence of positive evidence. No material in this behalf is available on record. Thus, it cannot be concluded that the shop premises is still legally available with the petitioner for running the ration shop, if allotted.

36. So far as respondent No. 4 is concerned, no document or evidence is on record to indicate as to in what capacity the said Society came in possession of the subject shop premises. The material on record only suggests an agreement dated 4th May, 2002. One does not know the nature and/or life of the said agreement. One does not know whether it is agreement of lease or rent or licence or agreement to purchase the property with possession. No documentary evidence in this behalf is available on record. One does not know whether or not the said agreement is still alive and holding the field. One cannot imagine that the subject shop premises would remain unused or under lock and key for such a period of more than six and half years as such claim of the respondent No. 4 by passage of time has lost its significance.

37. On the aforesaid backdrop, this Court has to consider the effect of long gap of 6 1/2 years consumed by the present litigation. This Court has to consider as to whether any useful purpose would be served by remanding the matter back to the authorities below for consideration afresh.

38. Having noticed the factual matrix, having indicated the nature of material available on record including absence of positive material to decide rival claims on merits, I am of the considered view that no useful purpose would be served by remanding the matter back for consideration afresh to the authorities below.

39. The State Government has laid down the guidelines prescribing eligibility criteria for allotting ration shops. As a part of Government's policy of the distribution of its largesse Government have prescribed the eligibility criteria. The persons answering the eligibility criteria according to the priority fixed can only be considered for allotting ration shop. Persons dehors the guidelines have no independent right to have business or avocation in the form of running ration shop. The distribution of largesse of the State is for the common good and to subserve the common good of as many persons as possible. Economic and social justice as envisaged in the Preamble of the Constitution, is sought to be achieved and there is a reasonable nexus between the object and the prescription of the eligibility criteria as prescribed in the guidelines.

40. During the intervening period of 6 1/2 years, the other citizens of the subject ration area must have acquired or built shop premises. They would also be entitled to have right to apply and get their claim considered in accordance with law.

41. In the above premises, for the reasons stated, I decline to remand the matter back for consideration afresh by the authorities under the Act. On the contrary, I direct respondent No. 1 to issue fresh advertisement inviting fresh applications for consideration afresh on their own merits in accordance with law.

42. In the result, impugned order dated 24th November, 2006 passed by the respondent No. 3 is quashed and set aside. As a consequence thereof, the order dated 17th December, 2004 passed by respondent No. 2 would not survive. Respondent No. 1 to comply with the direction given herein immediately after the expiry of Code of Conduct which is prevailing as on date. It is made clear that the petitioner and respondent No. 4 shall also be entitled to compete with others but only after making proper applications in response to the fresh advertisement inviting applications. None of the orders passed in the present proceedings either in favour or against the parties to the petition shall come in their way.

43. Rule is made absolute in terms of this order with costs quantified in the sum of Rs. 30,000/- to be paid by the State Government to the petitioner which the respondent No. 3 shall reimburse to the State from his own funds being responsible for giving birth to the shocking fact emerged on record. The Secretary, Food and Civil Supply and Consumer Protection, Government of Maharashtra, Mumbai to report compliance of this order within four weeks from today.