Writ Petition No. 5646 of 2010

20th September, 2011

Petitioner Counsel: Shri S.D.CHOPDE
Respondent Counsel: Shri K.L.DHARMADHIKARI, Shri P.V.NAVLANI, counsel h/f Shri ANAND PARCHURE

Cases Cited:
Ramprasad Ramchandra Chavan Vs. State of Maharashtra and others, 2010(4) Mh.L.J. 82 [Para 6,13]
Bar Council of Maharashtra Vs. M.V.Dabholkar, AIR 1975 SC 2092 [Para 6,14]
Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and others, AIR 1976 SC 578 [Para 6,11]
Gadde Vyankateswara Rao Vs. Govt. of A.P. and others, AIR 1966 SC 828 [Para 6,15]
Parmeshwar Sihoratan Bohara and another Vs. State of Maharashtra and another, 1997(2) ALL MR 35=1997 (2) Mh.L.J. 252 [Para 6]
Rajendra Nandlal Agrawal Vs. State of Maharashtra and others, Writ Petition No. 5993 of 2010 Dt.13/07/2011 [Para 7]
State of M.P. Vs. Narmada Bachao Andolan, (2011) 7 SCC 639 [Para 13]
Surya Dev Rai Vs. Ramchander Rai and others, 2003(4) ALL MR 761 (S.C.)=2004 (1) Mh.L.J. 633 [Para 15]

JUDGMENT

JUDGMENT :- This petition challenges the order dated 28.06.2010 passed by the Hon'ble Minister, Food Civil Supplies and Consumer Department of State of Maharashtra, partly allowing the application for review of the order dated 26.08.2009, in exercise of its power conferred by Clause 16 of the Maharashtra Scheduled Commodities Retail Dealers' Licensing Order, 1979 ("the said order" for short).

2. A notice for final disposal of the matter was issued on 23rd November, 2010, and the interim relief in terms of prayer clause (ii) of the petition was granted. The respondents are served. Shri K.L.Dharmadhikari, the learned Asstt. Govt. Pleader appears for Respondent Nos. 1 to 3 and Shri P.V.Navlani, the learned counsel h/f Shri Anand Parchure, Advocate appears for Respondent No.4. The matter is heard finally.

3. The District Supply Officer in exercise of his power conferred by Clause 11 of the said Order, passed an order on 2.5.2009, forfeiting the security deposit of the respondent no. 4 on the ground that he had violated the terms and conditions of the retail kerosene license issued under the said Order. The petitioner, who claims to be the resident of the concerned area and the card holder preferred an appeal under clause 15 (1) of the said Order, before the Deputy Commissioner (Supply), Amravati Division, Amravati which was registered as CSS-195 /Akola Thakare / 2008-2009, challenging the order passed by the District Supply Officer and claiming that further punishment ought to have been imposed upon the respondent no. 4, of cancelling the license. This appeal was decided on 14.07.2009, by setting aside the order of the District Supply Officer and sending the matter back to him for passing an order of cancellation of kerosene license of respondent no.4.

4. Aggrieved by the aforesaid order, the respondent no. 4 preferred a revision before the State Government and the said revision was dismissed by the then Minister, by his order dated 26th August, 2009. The respondent no. 4 preferred review application, after change in the Ministry, which has been allowed by the impugned order dated 28th June, 2010. The order dated 14.07.2009 passed by the Deputy Commissioner (Supply), Amravati Division, Amravati and the order passed in revision by the erstwhile Minister on 26.08.2009, were set aside and the order dated 02.05.2009 passed by the District Supply Officer has been confirmed.

5. Shri Chopde, the learned counsel for the petitioner submits that the appeal filed by the petitioner was entertained and allowed by the Deputy Commissioner (Supplies) and the petitioner was party to the proceedings throughout. Therefore, the petitioner is the "person aggrieved", having locus to maintain the petition, challenging the order passed in review petition setting aside the order passed by the Deputy Commissioner (Supply), directing cancelling of retail kerosene license of the respondent no. 4.

6. In support of his proposition, he has relied upon the following decision;

(a) The Division Bench judgment of this Court reported in 2010(4) Mh.L.J. 82; Ramprasad Ramchandra Chavan vrs. State of Maharashtra and others; for proposition that in similar factual position this Court has held that the petitioner before this Court was complainant before the District Supply Officer and the intervenor before the Commissioner and hence it has been held that the question of locus standi does not have any merit.

(b) The decision of the Apex Court reported in AIR 1975 SC 2092; Bar Council of Maharashtra vrs. M.V.Dabholkar, wherein the provisions of Sections 37 and 38 of the Advocates Act were interpreted to hold that the Bar Council of Maharashtra was the person aggrieved.

(c) The decision of the Apex Court reported in AIR 1976 SC 578; Jasbhai Motibhai Desai vrs. Roshan Kumar, Haji Bashir Ahmed and others; in support of his proposition that the expression "person aggrieved" denotes an elastic, and to an extent, an elusive concept and it cannot be confined within the bounds of a rigid, exact and comprehensive definition. Its features can be described in a broad tentative manner and its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or inquiry suffered by him.

(d) The another decision relied upon by him is reported in AIR 1966 SC 828; Gadde Vyankateswara Rao vrs. Govt. of A.P. and others, wherein it has been held that a personal right need not be in respect of a proprietary interest and it can also relate to an interest of a trustee. It has been held that the person interested has locus to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India.

(e) The Division Bench judgment of this Court reported in 1997 (2) Mh.L.J. 252 : [1997(2) ALL MR 35]; Parmeshwar Sihoratan Bohara and another vrs. State of Maharashtra and another to urge that common man has locus to make grievance in public interest.

7. The learned counsel appearing for the respondent no. 4 has relied upon the decision which I have delivered on 13th July, 2011 in Writ Petition No. 5993/2010 (Rajendra Nandlal Agrawal vrs. State of Maharashtra and others) by which the petition was dismissed on the ground of the locus of the petitioner to challenge the order passed by the Hon'ble Minister, in review petition arising out of the WholeSale Kerosene Dealers' Licensing Order.

8. The question which needs to be considered is whether the petitioner is the "person aggrieved" to file an appeal under Clause 15(1) of the said Order, challenging the order dated 2.5.2009 passed by the District Supply Officer in exercise of its power under Clause 11 of the said Order. If he is the "person aggrieved" then he can maintain this petition under Articles 226 and 227 of the Constitution of India.

9. In order to consider this question, Clause 15(1) of the said Order needs to be seen and hence the same is reproduced below.

15. Appeal

(1) Any person aggrieved by any order of the licensing authority refusing to issue (or to renew) a license or cancelling or suspending a license or forfeiting the security deposit deposited by him under the provisions of this order may appeal in the Bombay Rationing Area, to such officer not below the rank of Deputy Secretary to Government in the Food and Civil Supplies Department of Government as may be designated by Government for the purpose elsewhere, to the Commissioner of the Division.

It provides an appeal to "any person" aggrieved by any order of the Licensing Authority refusing to issue or to renew the license or cancelling or suspending a license or forfeiting the security deposit deposited by him under the provisions of the said Order. The expression "any order" used under Clause 15(1) cannot be construed to mean all orders, as urged by Shri Chopde, for the reason that is qualified by the categories of orders viz., (i) the order refusing to issue or renew a license, or (ii) the order cancelling or suspending a license or (iii) the order forfeiting the security deposit. In view of this, the expression "any person" appearing in the said clause also cannot be construed to mean all persons as urged by Shri Chopde. The category of persons competent to challenge such orders gets restricted to a class of orders which can be challenged. The expression "person aggrieved" cannot be given a wider meaning, so as to cover any person against whom no order as contemplated by Clause 11 has been passed or who is not aggrieved by any order passed therein. Hence, it will only be the person, against whom the order forfeiting security deposit under Clause 11 of the said Order has been passed, shall be a "person aggrieved" within the meaning of Clause 15(1) reproduced above.

10. Though, the appeal filed by the petitioner challenged the order passed by the licensing authority forfeiting security deposit, it was not an order against the petitioner but it was against the respondent no. 4. The petitioner, therefore, was not a "person aggrieved" by an order dated 2.5.2009, passed by the District Supply Officer, under Clause 11 of the said Order, forfeiting the security deposit, so as to maintain an appeal under Clause 15(1) of the said Order. On the contrary, the petitioner was aggrieved by the action of the District Supply Officer in not cancelling the kerosene license of the respondent no. 4 and the relief was claimed to cancel his kerosene licence. Perusal of Clause 15(1) clearly shows that no appeal is provided against any order refusing to cancel the license or for claiming cancellation of kerosene licenses, but the appeal is provided only against the order of cancelling or suspending the license. The petitioner filed an appeal claiming the relief of cancellation of kerosene license of the respondent no. 4 and the same was allowed by the Deputy Commissioner (Supply), Amravati, in exercise of his power under Clause 15(1) of the said Order. The said appeal was not maintainable and the said authority committed an error of jurisdiction in entertaining the appeal and granting relief. Such an illegal order cannot be restored in exercise of writ jurisdiction under Articles 226 and 227 of the Constitution of India, by setting aside the order impugned.

11. I have already taken a view in Writ Petition No. 5993/2010, decided on 13th July, 2011, that a writ of certiorari can be issued only at the instance of a "person aggrieved" and the view is based upon the decision of the Apex Court in the matter of Jasbhai Motibhai Desai vrs. Roshan Kumar Haji Bashir Ahmad and ors, reported in AIR 1976 SC 578. Para 12 of the said judgment of the Apex Court is relevant and the same is, therefore, reproduced below.

"12. According to most English decision, in order to have the locus standi to invoke certiorari jurisdiction, the petitioner should be an "aggrieved person" and in a case of defect of jurisdiction, such a petitioner will be entitled to a writ of certiorari as a matter of course, but if he does not fulfill that character, and is a "stranger", the Court will, in its discretion, deny him this extraordinary remedy, save in very special circumstances. This takes us to the further question :Who is an "aggrieved person"? And what are the qualifications requisite for such a statute? The expression "aggrieved person" denotes an elastic, and, to an extent, an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. At best, its features can be described in a broad tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him. English Courts have sometimes put a restricted and sometimes a wide construction on the express "aggrieved person". However, some general tests have been devised to ascertain whether an applicant is eligible for this category so as to have the necessary locus standi or 'standing' to invoke certiorari jurisdiction."

It has been held that in order to have locus standi to invoke certiorari jurisdiction, the petitioner should be an "aggrieved person", otherwise in a case of defect of jurisdiction, such petitioner will be entitled to a writ of certiorari, as a matter of course. Once it has been held that the petitioner was not a "person aggrieved" and it was not an order against which the appeal was available under clause 15(1) of the said Order, then there was no question of the Deputy Commissioner (Supply) setting aside the order dated 2.5.2009, at the instance of the petitioner.

12. Shri Chopde, the learned counsel has relied upon the observations made in para 12 of the judgment of Apex Court, reported above, to urge that the scope and meaning of the "aggrieved person" depends upon the diverse, variable factors such as content and intent of statute of which the contravention is alleged, the specific circumstances of the case, the nature and extent of petitioner's interest and the nature and extent of the prejudice or injury suffered by him. There cannot be any dispute on this aspect. These are the general observations and it will always depend upon the facts of the case, the provisions of law and the rights of the parties, to decide whether the petitioner is a "person aggrieved".

13. Coming to the Division Bench judgment of this Court reported in Ramprasad Ramchandra Chavan's case (cited supra), the relevant observations are in para 30 of the said judgment, which are reproduced below.

"30. It is also demonstrated that respondent no. 5 was amongst the complainants before the District Supply Officer and intervenor before the Commissioner. The question of locus standi does not have any merit. The objection to locus standi of the writ petitioner therefore, does not deserve any cognizance. Appellant does not dispute that he has participated in the hearing."

Except the aforesaid observations, there is no reference either to the provisions of Clause 11 or Clause 15 of the said Order. The decision is not rendered upon the construction or interpretation of Clauses 11 and 15 of the said Order. The question whether the petitioner is aggrieved or not has to be decided on the basis of the interpretation of Clause 15(1) reproduced earlier, and it cannot be decided on the basis of general principles which are applicable for invoking the original jurisdiction of this Court under Article 226 of the Constitution of India. This has not been considered by the Division Bench of this Court. The said provision does not seem to have been brought to the notice of this Court. In this respect, para 67 of the decision of the Apex Court in the case of State of M.P. vrs. Narmada Bachao Andolan reported in (2011) 7 SCC 639 needs to be relied upon. Para 67 is as under.

67. Thus, "per incuriam" are those decisions given in ignorance or forgetfulness of some statutory provision or authority binding on the court concerned, or a statement of law caused by inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong".

In view of this, the decision does not apply to the facts of the present case.

14. Coming to the decision of the Apex Court in Bar Council of Maharashtra's case (cited supra), the same is based upon the construction of Sections 37 and 38 of the Advocates Act. Section 37 provides right of appeal to the Bar Council of India and it states that any person aggrieved by an order of the disciplinary committee of a State Bar Council or the Advocate-General of the State may, within sixty days of the date of communication of the order, prefer an appeal to the Bar Council of India. The question was, whether the Bar Council of Maharashtra can be said to be a person aggrieved, having locus to prefer an appeal under Section 37 of the Advocates Act. In para 30 of the said judgment, the Apex Court has held that the words "person aggrieved" in the said provision are of wide import in the context of the purpose and provisions of the statute and therefore, the word "person" will embrace the Bar Council which represents the Bar of the State. There cannot be a dispute on this proposition which is based upon purely the interpretation of the provision. Hence, the said judgment does not apply to the facts of the present case.

15. The next judgment relied upon is in the case of Gadde Vyankateswara Rao vrs. Govt. of A.P. and others (cited supra), wherein the court was considering the question of locus of the petitioner to file a petition under Article 226 of the Constitution of India, which is the original jurisdiction. The concept of "locus standi" or "person aggrieved" in respect of filing of petitions invoking original jurisdiction of the High Court under Article 226 of the Constitution of India is well settled and any person making a complaint in public interest is held to have locus to maintain such petition. The said judgment is not applicable in the present case for the reason that the petitioner is essentially invoking the jurisdiction of superintendence under Article 227 of the Constitution of India and as has been held by the Apex Court in its decision reported in 2004 (1) Mh.L.J. 633 : [2003(4) ALL MR 761 (S.C.)]; Surya Dev Rai vrs. Ramchander Rai and others, such a jurisdiction is capable of being exercised only on a prayer made by or on behalf of party aggrieved.

16. In view of above, the petition is liable to be dismissed only on the sole ground that the petitioner is not a person aggrieved, who can invoke the jurisdiction of superintendence under Articles 226 and 227 of the Constitution of India, challenging the order passed by the Hon'ble Minister in Review. The petition is, therefore, dismissed. No orders as to costs.

17. Shri Chopde, the learned counsel for the petitioner makes a prayer for continuation of interim order passed by this Court for a further period of three weeks. Since the order is operating from 23rd November,. 2010, no prejudice would be caused to the other side if the same is continued for a further period of three weeks. Hence, the interim order shall continue to operate for a further period of three weeks from today, after expiry of which, it shall stand automatically vacated.

Petition dismissed.