Allowed

Chandrakant Tukaram Firode v. the State of Maharashtra

Bombay HC19 Jun 2015WP/1904/2002

Case brief

AI extract

What is this about?

A writ petition challenged orders granting retail kerosene licenses as a 'special case' without public advertisement. The High Court held that the revisional authority erred in bypassing the mandatory procedural requirement of issuing advertisements unless exceptional urgency existed, without which such direct licenses were arbitrary and illegal.

What did the court decide?

The impugned orders dated 18.04.2002 granting retail kerosene licenses to respondent Nos. 4 to 6 as a special case without advertisement are quashed and set aside.

Chandrakant Tukaram Firode Vs the State of… — Pension and Retirement Benefits | Bombay HC (2015)

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( 1 ) wp1904.02

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 1904 OF 2002

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1. Chandrakant Tukaram Firode Deceased through his legal heirs

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.. Petitioners

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1A] Nandkumar s/o. Chandrakant Firode, Age.50 years, Occ. Business, R/o. Malhar Chowk, Station Road, Ahmednagar.

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2. Sandya Magasvargiya Mahila Audyogik Sanstha Ltd. Through its Chairman Sow. Sangita Ashok Thokal Age. 27 years, Occ. Business, R/o. Annabhau Sathe Vasahat, Maliwada, Ahmednagar.

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3. Shaikh Shabbir Ahmed Age. 45 years, Occ. Business, R/o. Station Road, Ahmednagar.

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4. Shri Arun s/o. Haribhau Abhave Age. 32 years, Occ. Business, R/o. Tilak Road (Station Road), Ahmednagar.

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5. Sow. Vimalbai Chandrakant Firode, Age. 50 years, Occ. Business, R/o. Station Road, Ahmednagar.

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6. Ekviramata Mahila Audyogic Utpadak Co-operative Ltd., Through its Chairman Sow Meena Prakash Hapse, Age. 35 years, Occ. Business, R/o. Station Road, Ahmednagar.

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( 2 ) wp1904.02

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Versus

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1. The State of Maharashtra .. Respondents 2. The Hon'ble Minister, Food and Civil Supply and Customer Protection Mantralaya, Bombay.

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3. District Supply Officer, Ahmednagar, Dist. Ahmednagar.

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4. Sudhir s/o. Motilal Kale, Age. 35 years, Occ. Business, R/o. Jathar Niwas, Barudgaon Road, Ahmednagar.

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5. Ganesh s/o. Amrut Kale, Age. 33 years, Occ. Business, R/o. Bhushan Nagar, Kedgaon, Tq. & Dist. Ahmednagar.

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6. Manoj s/o. Mahadeo Kale, Age. 35 years, Occ. Business, R/o. Nalini Niwas, Kale Galli, Burudgaon Road, Ahmednagar.

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Mr. V.S. Bedre, Advocate for the petitioner.
Mr. D.V. Tele, A.G.P. for respondent/State.
Mr. R.B. Dhaware h/f. Mr.U.S. Malte, Advocate for
respondent Nos. 4 to 5.

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Mr. V.P. Raje h/f. Mr. C.R. Deshpande, Advocate for
respondent Nos. 6.

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CORAM : A.V. NIRGUDE &
A.M. BADAR,JJ.
DATED :19.06.2015

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ORAL JUDGMENT [PER : A.M.BADAR,J.] :-

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1.This petition raises a challenge to directions

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of Respondent No.2-Revisional Authority for issuance of

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retail kerosene license to respondent Nos.4 to 6.
Kerosene is an essential commodity under the provisions

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of the Essential Commodities Act, 1955. The Maharashtra

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Kerosene Dealers Licensing Order, 1966 deals with
regulation of trading of kerosene. A person desirous of

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trading in kerosene is required to make an application
for issuance of license under Clause 4 of the said order
of 1966. No trading of kerosene can be done without

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having a license and except in accordance with the terms

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and conditions of license issued by the Licensing

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Authority in pursuance to the Licensing Order of 1966.

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The respondent-State has issued several resolutions in

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terms of the Licensing Order of 1966, which deals with
procedure for issuance of retail license for trading in
kerosene.

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2.By the instant petition, the petitioner is
challenging orders dated 18.04.2002 passed by Respondent
No.2-Revisional Authority directing granting of retail
kerosene license to respondent Nos.4 to 6 as a special
case.

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3.We heard the learned Counsel appearing for the
petitioner. By drawing our attention to the Government
Resolution dated 16.08.2001 (Exh. "B"), he contended that
seeking license for retail distribution of kerosene, the
State is obliged to issue an advertisement inviting
application from the public at large for seeking the
license for retail distribution of kerosene. According
to learned Counsel for the petitioner, in the case in
hand, without there being any advertisement, respondent

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Nos.4 to 6 directly approached Respondent No.3-District

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Supply Officer for grant of license for retail
distribution of kerosene. He further argued that though
the District Supply Officer rightly rejected the
applications moved by respondent Nos.4 to 6; in revision,
respondent No.2 has directed the District Supply Officer
to issue retail kerosene license to respondent Nos.4 to 6
with a further direction to allot appropriate quota to
them. This action, according to learned Counsel for the
petitioner, is high-handed, arbitrary and illegal.

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4.Mr. Raje, Advocate h/f. Mr. Deshpande, learned

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Counsel appearing for respondent No.6 tried to justify
impugned orders by contending that as per G.R. dated
09.05.2000, the power and authority for issuance of
license for distribution of kerosene without following

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due process as laid down in GR dated 16.08.2001 is with

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the State Government and respondent No.2 has rightly
exercised the power. According to him impugned orders are

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passed considering the report of the concerned officer,

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which shows that there are no retail dealers in the
locality for which respondent Nos.4 to 6 had applied for
retail license. Hence, according to learned Counsel
appearing for respondent No.6 impugned action is
perfectly justified. The learned Counsel appearing for
respondent Nos.4 & 5 also adopted the same arguments.

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5.Learned A.G.P. appearing for the State contended

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that power to grant license for retail distribution of
kerosene as a special case in terms of Government order
dated 09.05.2010 and the power conferred under the said
orders were exercised by the State while granting license
to respondent Nos.4 to 6.

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6.We have carefully perused the provisions of the
Maharashtra Kerosene Dealers Licensing Order, 1966 as
well as Government Resolution dated 16.08.2001 (Exh. “B”)
which provides for the procedure prevalent at the

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relevant time for grant of retail distribution license of

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kerosene. The Government Resolution dated 16.08.2001 and

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more particularly clause 2 (d) thereof prescribes that as

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and when the State is required to issue new license for
retail distribution of kerosene, necessary advertisement
must be issued in the news-paper having largest
circulation in the area, where license is required to be

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issued. The public at large was entitled to make
necessary applications for grant of license in terms of
said advertisement. The Government Resolution further
provides that while granting license, preference should

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be given to the category of applicants mentioned therein.
The Sub-Divisional Officer is authorized to issue license

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after examining the application received in pursuance of
the advertisement. Obviously, this procedure is envisaged

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to maintain transparency and in order to see that all
eligible persons gets an opportunity to participate in
the process of allotment of dealers license.

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7.Apart from this regular procedure for issuance

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of retail distribution license of kerosene, by issuing
order dated 16.05.2000 the State Government has taken

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care of the contingency when there is an urgent need to
issue license in order to prevent inconvenience to the
public at large. This Government Order dated 16.05.2000
found at page No.44 of the record clearly provides that

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in rainy season or in famine like situation, following
the routine procedure of issuance of an advertisement for

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seeking applications for dealership license may cause
delay and consequent inconvenience to the general public.

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In such contingency the State is empowered to issue
retail distribution license of kerosene bypassing

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procedure of inviting applications from the public at
large in terms of the Government Order dated 16.05.2000.

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Thus, for public convenience the State Government can

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issue retail distribution license of kerosene directly to

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the concerned person provided that there is exceptional

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urgency due to rainy season or famine like situation.

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The object of such order is not to favour the applicant,

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but to see that general inconvenience to the public at
large in difficult situation is avoided. It is in such
situation following the routine procedure is exempted.

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8.In the light of this procedure adopted by the

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State for issuance of license for retail distribution of
kerosene, let us examine the case in hand. In the
instant case, respondent No.4-Sudhir s/o. Motilal Kale
made application for issuance of license for retail
distribution of kerosene to Ahmednagar Railway station
area. In similar manner, respondent No.5-Ganesh s/o.
Amrut Kale applied for Kedgaon area and respondent No.6-

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Manoj s/o. Mahadeo Kale applied for Burudgaon area. All

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these applications were submitted without there being an
advertisement inviting applications for issuance of

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retail distribution license for kerosene. These

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applications of respondent Nos.4 to 6 came to be rejected
by the District Supply Officer with a reason that only

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State Government can issue license without calling
applications and that too as a special case.

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9.Dissatisfied with the order of the District
Supply Officer rejecting their applications respondent
Nos.4 to 6 preferred revision applications before
Respondent No.2-Hon'ble Minister for Food, Civil Supplies
and Consumer Protection. These revisions were heard
after calling report from the Civil Supplies Department.
Perusal of the impugned order shows that the Civil Supply
Department gave a report that the area for which the
retail distribution license was sought by respondent Nos.
4 to 6 is lacking kerosene dealers and for that area
license for retail distribution of kerosene can be
issued. Considering this report, the Revisional Authority
allowed revision petitions by orders impugned in this
petition with a direction to issue retail distribution
kerosene license in favour of respondent Nos.4 to 6.

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10.We are at pains to mention that the Revisional

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Authority ought not to have decided revision petitions in
such casual and high-handed manner without examining the
factual foundation of the case in order to determine
whether the case falls in the category of special case as
envisaged by the Government Order dated 09.05.2000. As
clarified in foregoing paragraph the Government Order
dated 09.05.2000, provides that retail distribution
license can be granted as a special case only in order to
avoid inconvenience to the public at large and that too
at the time of rainy season and famine like situation.
These relevant aspects were not at all kept in mind by
the Revisional Authority while allowing revision
petitions of respondent Nos.4 to 6. There was nothing on

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record to show that because of rainy season or famine
like situation the general public was facing hardship in

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getting kerosene at Ahmednagar and Burudgaon area and
there was likelihood of undue delay in supply of kerosene
in the eventuality of following the due procedure by

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issuing an advertisement. By granting retail distribution

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license of kerosene to respondent Nos. 4 to 6 without
following the prescribed procedure the Revisional

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Authority has adopted perverse and high-handed approach

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thereby preventing all desirous and eligible persons from
moving applications and competing for seeking license for

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retail distribution of kerosene. The impugned order

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nowhere discloses the reasons for arriving at a
conclusion that the applications of the respondent Nos.4

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to 6 fall under the special case. There is no reason in

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the impugned order as to why an advertisement inviting
applications need not be issued and why general public
should be prevented from making applications for grant of

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license. In nutshell impugned orders are examples of

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arbitrary and high-handed exercise of power for
distributing the State largess by the Revisional

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Authority. As such, they cannot be sustained and
therefore the following order :-

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( 13 ) wp1904.02

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O R D E R

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i)The writ petition is allowed.

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ii)Impugned orders dated 18.04.2002
allowing revision petitions filed by respondent
Nos.4 to 6 thereby granting them license for
retail distribution of kerosene as special case
are quashed and set aside.

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iii)Rule is made absolute accordingly with
no order as to costs.

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[A.M. BADAR,J.]

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[A.V. NIRGUDE,J.]

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snk/2015/JUN15/wp1904.02

Chandrakant Tukaram Firode v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Chandrakant Tukaram Firode v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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