Writ Petition No.850 of 1988

7th November, 1996

Petitioner Counsel: Mr.R.K.DESHPANDE
Respondent Counsel: Mrs. T.D.KHADE, Mr. M.N.INGLEY

Cases Cited:
AIR 1987 SC 203 [Para 5]
AIR 1993 SC 1616 [Para 5]

JUDGMENT

L.MANOHARAN, J. :- The challenge in this writ petition is against Annexure-I order of the State Govt. allowing the revision by the second respondent. The matter arose under clause 24 of the Maharashtra Scheduled Commodities (Regulation of Distribution) Order 1975 (for short the Regulation). The revision was entertained by the 1st respondent against the order of the Commissioner, Annexure-H. By this order the Commissioner confirmed the order of the Sub Divisional Officer allotting authorisation to run the Fair Price Shop in favour of petitioners 1 and 2.

2. Respondent no.2, a Co-operative Society was conducting four separate Fair Price Shops in Wards No. 1,2,3 & 4 in village Hivarkhed. Respondent no.2 later amalgamated the four Fair Price Shops into two. Thereafter the Sub Divisional Officer of Akola decided to issue proclamation inviting applications for allotment of Fair Price shops for Wards No.2 & 4. In response to the said proclamation, the writ petitioners and respondent no.2 along with others submitted applications. The Sub Divisional Officer allotted the Fair Price Shop in Ward No.2 to petitioner no.1 and the Fair Price Shop in Ward No.4 to petitioner no.2. Aggrieved by the said order, respondent no.2 preferred revision before the Commissioner. The Commissioner, as indicated, dismissed the revision by Annexure-H order. Respondent no.2 thereafter filed a further revision under clause 24 of the Regulation. By Annexure-I order the 1st respondent reversed the orders of the Commissioner as well as the Sub Divisional Officer and allotted the authorisation for the said Fair Price Shops also to the 2nd respondent.

3. Mr.R.K.Deshpande, learned counsel for the petitioners, contended that under law a second revision is not maintainable, and therefore, the order at Annexure-I is infirm as the same has been rendered without jurisdiction. The learned counsel maintained that the instant application cannot fall under the first proviso to clause 24 of the Regulation and, therefore, the order cannot be said as one under the proviso to clause 24. It is also maintained by the learned counsel that no circumstances existed for the exercise of the sou motu jurisdiction under the proviso to clause 24. Alternatively, it was maintained by the learned counsel that on merit also, the second respondent should not have been favoured for conferring of authorisation of Fair Price Shop in question, as according to the learned counsel, they themselves have admitted their incompetency to run and conduct the Fair Price Shop in Wards No.2 and 4.

4. Mrs.Khade, learned Asstt. Govt. Pleader on the other hand maintained that a second revision is maintainable under clause 24, and alternatively it was maintained by the learned Asstt. Govt. Pleader that at any rate the order is not without jurisdiction as the 1st respondent possessed the necessary jurisdiction to pass appropriate orders after examining the record of any enquiry or proceeding as per the first proviso to clause 24.

5. Mr.Deshpande, learned counsel, referred us to the decision of Supreme Court in the case of Aundal Ammal V. Sadashivan Pillai - AIR 1987 SC 203 in support of his contention that a second revision is not maintainable under clause 24 of the Regulation. It is maintained by the learned counsel that this decision was re-affirmed in the case of Rukmini Amma Saradamma V. Kallyani Sulochana - AIR 1993 SC 1616. The decision Aundal Amma case, AIR 1987 SC 203, arose under Kerala Buildings (Lease and Rent Control) Act (2 of 1965). Eviction of a tenant falling within the purview of the said Act was possible only as per an order under section 11(2) of the said Act. Appeal was provided for against the said order as per section 18 thereof, and revision against the order of the appellate authority was provided under section 20 of the said Act. The question that arose before the Supreme Court was, whether after revision under section 20 of the said Act a further revision under section 115 of the Code of Civil Procedure is maintainable. In considering the said question, Supreme Court adverted to sub-section 5 of Section 18 of the said Act which provided for appeal before the appellate authority. It is necessary in the context to appreciate what Their Lordships have laid down, to read the said sub-section (5) of Section 18 :

" Section 18 --

(1) ....

(2) ....

(3) ....

(4) ....

(5) The decision of the appellate authority, and subject to such decision, an order of the Rent Control Court shall be final and shall not be liable to be called in question in any Court of law, except as provided in Section 20."

Therefore, the order of the Rent Control Court would attain finality after a revision under section 20 of the said Act. This particular provision showed no further revision is maintainable under section 115 of the Code of Civil Procedure. Adverting to the said Act, Their Lordships observed in para 15 :

"The question is, can he have a second revision to the High Court? Shri Poti submitted that he cannot. We are of the opinion that he is right. This position is clear if sub-section (5) of S.18 of the Act is read in conjunction with S.20 of the Act. Sub-section (5) of S.18, as we have noted hereinbefore, clearly stipulates that the decision of the appellate authority and subject to such decision, an order of the Rent Controller ' Shall be final and ' shall not be liable to be called in question in any Court of law', except as provided in Section 20. By Section 20, a revision is provided where the appellate authority is Subordinate Judge to the District Judge and in other cases, that is to say, where the appellate authority is District Judge, to the High Court. The ambits of revisional powers are well-settled and need not be re-stated. It is inconceivable to have two revisions. The scheme of the Act does not warrant such a conclusion. In our opinion, the expression ' shall be final ' in the Act means what it says."

Therefore, second revision was held to be not maintainable under section 115 of the code of civil procedure on account of the language used in both the sections 18 and 20 of the said Act. Inevitably, therefore, the question, whether a second revision in given circumstances is maintainable or not will depend upon the language of the provision that provides for the revision. It is true, Sardamma's case (AIR 1993 SC 1616) makes reference to the decision in Aundal Ammal's case (AIR 1987 SC 203) referred to early in the context of the contention raised on the basis of the said decision to the effect that, the revision under Section 115 of Code of Civil Procedure was not competent. The said decision also arose under the Kerala Rent Control Act (Act 2 of 1965). There, in the revision under section 115 C.P.C., the matter was remitted to the trial court; and after that the appellant took chance to participate in the proceedings after remand. Therefore, the Supreme Court held, the appellant having acquised in the said proceedings cannot question the validity of the remit order. The significance sought to be sustained by the learned counsel for petitioners is, as above the Supreme Court reaffirmed the decision in Aundal Ammal's case, though on the ground if acquisence the appellant was found to be not entitled to raise such a convention. This can only mean that the reasoning and finding in Aundal Ammal's case was affirmed. But as noticed, the said finding and conclusion whether a further revision under section 115 C.P.C. is maintainable, turned on the language of Sections 18 and 20 of the said Act.,

6. Now it becomes necessary to refer to clause 24 of the Regulation.

" 24. Power to call for and examine records of proceedings and revise orders - If any person is aggrieved by an order passed by the Collector, the Commissioner, and if any person is aggrieved by an order passed by the Commissioner, the State Govt., may, on an application made to him, or it by the aggrieved person, within thirty days from the date of receipt of such order, stay the enforcement of such order. The Commissioner or the State Govt., as the case may be, may also call for and examine the record of any inquiry or proceedings of the concerned Officer exercising or failing to exercise the powers under this order to add to, amend, vary, suspend or cancel any authorisation issued or deemed to be issued under clause 3 or any supply card issued or deemed to be issued under clause 6 or to forefeit the deposit ( or any part deemed thereof paid or deemed to be paid by a fair price shop or authorised agent as security or to take any other action under the provisions prescribed by or under this Order, for the purpose of satisfying himself or itself as to the regularity of the proceedings of such officer and may pass such order thereon as he or it as the case may be, thinks fit: Provided that State Govt. may at any time, (during the pendency of any inquiry or proceedings or within one year from the date of any order passed by any officer under the provisions prescribed by or under this order. sou motu stay any pending inquiry or proceedings or the enforcement of such order if considered necessary and may call for and examine the record of any such inquiry or proceedings, and pass such order thereon as it thinks fit; Provided further that the Commissioner or the State Govt., as the case may be, shall not pass any order under this clause which adversely affects any person unless such person has been given a reasonable opportunity of being heard."

(emphasis supplied)

A plain reading of the said clause shows that if a person is aggrieved by the order passed by the Collector, revision will lie before the Commissioner; and if one is aggrieved by the order passed by the Commissioner a revision will lie before the State Government. We may, at this juncture, advert to the argument advanced by Shri Deshpande, learned counsel, to the effect that a revision can lie only against the orders passed under clauses 3 and 6 of the Regulation. Clause 3 deals with issue of authorisation to fair price shops to obtain and supply scheduled commodities; and clause 6 deals with power to issue of supply card to a person or class of persons. Clause 3 enjoins that such authorisation can be issued by State Government or Collector, and clause 6 says, the State Government or the Collector may issue or cause to issue supply card. According to the learned counsel, since authorisation under clause 3 can be issued either by the Collector or the State Government, and in this case the order was by the Sub Divisional Officer, revision can be entertained by the Commissioner. The further contention appears to be, since the Commissioner is not an authority mentioned in clause 3 or (6) an order passed by him is not revisable under clause 24 as according to the learned counsel clause 24 speaks of revision only with respect to orders under clauses 3 and 6. The implication appears to be, the order of the Commissioner, if at all, can be corrected only under the 1st Proviso to clause 24. And since according to the petitioner, there was no material to exercise the suo motu power under the said proviso, the order rendered by the Commissioner is not amenable to the power in the said 1st Proviso also.

7. We are unable to accept the said interpretation placed by the learned counsel for more than one reason. First of all, clause 24 specifically mentions that from the order of the Collector, a revision shall lie to the Commissioner; and from the order of the Commissioner the aggrieved party can maintain a revision before the State Government. It may be that the Commissioner is not mentioned in Clause 3, but clause 24, which provides for revision, specifically mentions the Commissioner as a revisional authority. The assumption that the revisional power of the State Government does not take in order passed by the Commissioner is not sustainable in view of the language of clause 24. It should not be forgotten that once the revisional authority after hearing the party confirms the order, that order alone will be the effective order because of the doctrine of merger. Once the revisional authority confirms the order, the order of the lower authority merges with the order of the revisional authority; even otherwise the order of the Commissioner in revision has to be treated as an order under clause 3 of the Regulation. What is significant is that this aspect is taken care of in clause 24 itself because, as noted, clause 24 says the appropriate authority can suspend or cancel any authorisation issued or "deemed to be issued under clause 3". This, in our view, in effect makes the order passed by the Commissioner as one passed under clause 3; and this can be attained even by the operation of the theory of merger once the contested matter is disposed of by the Commissioner on a proper revision filed before him. Here, as noted, clause 24 itself makes the order by the Commissioner deemed to be one under clause 3 of the Regulation.

8. Inasmuch as clause 24 does not contain any statement as is obtained under Sub-section 5 of Section 18 of Kerala Rent Control Act making the order of the Collector or Commissioner as final; on the basis of the decision in AIR 1987 SC 203, cited supra, it cannot be contended that second revision cannot be maintained. Clause 24, as noted, does not employ any word so as to restrict its operation only to one revision. This has to be understood in the context of the fact that this order itself was issued under sub-section (1) and (2) of Section 3 of the Essential Commodities Act, 1955. The preamble part of the said act states that the same is an Act to provide, in the interest of the general public, for the control of the production, supply and distribution of, and trade and commerce in, certain commodities. The commodities that would fall within the ambit of the Act are essential commodities and essential commodities are defined under clause (a) of Section 2 of the act. The whole scope of the clauses in the Regulation have to be understood in the context of the aforesaid object of enacting the said Act and also the promulgation of the Regulation. It is pertinent in this context to note that there is absolutely no challenge against the validity of any of the provisions of the said Act or regulation. We do not consider, a restricted meaning can be assigned to the power of revision under clause 24 firstly because the language of the said clause does not permit it, and secondly, the object of the Act and Regulation also does not allow such restricted interpretation. Neither the words employed in Clause 24 nor the context support the interpretation sought to be placed by the learned counsel for the petitioners. It must be noted that one of the objects of the Act and Regulation is to control the distribution of essential commodities. Distribution is as much important as production. Proper distribution with supervision by the authority concerned is a must in securing the object of the Act as well as Regulation. Incidentally, it has to be noted that Article 39(b) of the Constitution of India also directs that the State shall, in particular, direct its policy towards ownership and control of the material resources of the community are so distributed as best to subserve the common good. In interpreting the provision in the Act as well as in the Regulation one should not miss the spirit underlining the said provision under Article 39. The Regulation, since is framed as per the provision in the Act, is a subordinate legislation. The legislative wisdom in enacting a provision as clause 24 cannot be called in question. The provision of further revision to the 1st respondent is thus competent and the only question is, whether as per the language used in clause 24, such revision is possible, As has already noted, revisional power is expressly conferred on the State, there is no restriction in the clause which would lead to a conclusion that further revision to the State is any way barred.

9. An attempt was made to demonstrate the 1st proviso since is intended for meeting a situation arising from the order of the Commissioner no further revision at the instance of the aggrieved party is contemplated. The very wording of the said proviso is such that the power therein is much wider, than the power of revision in the first part of clause 24. The said proviso gives to the state Government suo motu power to stay any order passed by the Officer under the Regulation and to call for record of any inquiry or proceeding "and pass such order as it thinks fit." The only restriction is, such order shall be passed within one year of the order in question and also after notice to the affected party. This power in the first proviso is independent of the power in first part of Clause 24. In effect the power under the proviso is inclusive of power of superintendence; but distinct from the power of revision in the clause as the exercise of the power in the proviso is not restricted to satisfying "as to the legality or propriety of order passed by such Officer and as to the regularity of the proceedings" which is the attribute of the power of revision. As the power in the said proviso includes the power to "call for and examine the record of any such inquiry or proceedings and pass such order thereon as it thinks fit", evidently the power is clearly wider than the revisional power; and in the context the provision is not intended as revisional power, instead the same essentially is a power of superintendence and the language employed therein takes into its sweep power of review also. there is enough safeguard in the two provisos against the arbitrary exercise of the said power. With due regard to the competency of such provision, which is not challenged, when the object of the Act as well as the Regulation is kept in view, that provision becomes relevant and mandatory because it is the interest of the 1st respondent that the distribution of essential commodities is not violated, for violation of the same will affect the welfare of the common people. The subject matter which is sought to be controlled by the Regulation is food grains and such commodities. It goes without saying that this is aimed to benefit the common man.

10. Mr. Deshpande, learned counsel for the petitioners, urged, when it is found that under clause 24 the 1st respondent has got a further revisional power, there shall be no relevancy or necessity for a further power as the one that is provided for in the proviso. We are unable to accept this argument for the simple reason that the said argument may not go hand in hand with the realities of our society, unless one takes into account the context and object of the provision, interpretation could produce adverse result causing injury to the very soul of the provision. A close reading of this clause will show that a power of revision within thirty days is given to the aggrieved party. But by the proviso, the 1st respondent is given a sou motu power, which we have already found to be a power inclusive of power of superintendence to be exercised within a period of one year. This demonstrates the awareness that it is not that the aggrieved party always challenges by revision the adverse order but in public interest even though the aggrieved party does not challenge an adverse order, in a given situation it would become necessary for the 1st respondent to look into the validity of the order passed by the subordinate officer. Once it is realised that the common man in the lower strata of the society, may not be that literate or capable to challenge an adverse order, it is in the interest of the State to protect the interest of such persons. Yet the whole object being the welfare of the society, it is necessary that power to peruse and correct orders which though are not challenged by preferring revision, is corrected in the larger interest of the society, particularly when such orders concern the distribution of essential commodities. Thus, such a power in the 1st proviso is not inconsistent with the power of revision conferred on the State Government by the said clause.

11. Now having found that the first respondent has power under clause 24 to entertain a revision, the only question that would fall for consideration is, with due regard to the materials available it was right for the first respondent to set aside the orders of the Sub Divisional officer and the Commissioner, and confer the authority of the fair price shop in question to the 2nd respondent.

12. So far as the first petitioner is concerned, the report of the Tahsildar is obtained at Annexure-E and the translation is at page 21-A, and so far as the second petitioner is concerned the report is at Annexure D-1 (page 19-A). These two reports would demonstrate that both are businessmen and are in grain trade. Whereas the petitioners were ranked last in the priority, the second respondent, the co-operative Society, was ranked at number six. So the relative position of the contestants was such that the second respondent ought to have been preferred. Annexure-I shows that there was no case that the 2nd respondent had no financial viability to conduct the said two fair price shops also. Since they were conducting the fair price shops for number of years, they cannot be disqualified as inexperienced. When such characteristics are there in favour of the claim of the second respondent, the only reason on which the claim of the second respondent was rejected and the petitioners were favoured by the Sub Divisional Officer as well as by the Commissioner was Annexure A-1 at page 12-A. The Commissioner in Annexure-H order states that the co-operative society was incapable of maintaining four shops and the Commissioner fortifies his conclusion on the basis of Annexure A-1 All that is stated in Annexure A-1 is that running four fair price shops was not bearable from the view point of expenditure. This can only mean that they opted for amalgamation to reduce the managerial costs. This statement is Annexure A-1 can never be interpreted to mean that the second respondent admitted that they are incapable of running the four fair price shop clearly the Commissioner mis-read the evidence which resulted in miscarriage of justice. As already indicated, the fact that the petitioners are the lowest in the priority whereas the second respondent was sixth in the priority is a factor which has got relevance and importance. Added to that, as indicated earlier, they had financial capacity as well as the experience to conduct the fair price shop. The above isolated sentence in Annexure A-1 should not have been exalted to have over riding effect on the aforesaid positive preferences of respondent no.2. Therefore, the State Government was right when it reversed the order of the Commissioner, as the State Government has the power to call for the records and satisfy itself as to the legality or propriety and also the regularity of the proceedings of the officers. We have no doubt in our mind that because of Annexure A-1 the claim of the 2nd respondent should not have been rejected by the Sub Divisional Officer and Commissioner. It is pertinent in the context to note that the Registrar of Co-operative Societies had issued a Certificate showing the financial soundness and capacity of the second respondent to conduct the fair price shop. Taking into consideration all the aforesaid aspects, we do not find any error in the exercise of jurisdiction by the 1st respondent, neither is there absence of jurisdiction for the first respondent to entertain the application of the 2nd respondent. Therefore, we are unable to accept the arguments of Mr. Deshpande learned counsel for the petitioners, and the writ petition is liable to be dismissed. We accordingly dismiss the writ petition. Rule discharged.

Rule discharged.