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IN THE HIGH COURT OF JUDICATURE AT BOMBAYIN THE HIGH COURT OF JUDICATURE AT BOMBAYIN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDEAPPELLATE SIDEAPPELLATE SIDE

WRIT PETITION NO. 4101 OF 2007WRIT PETITION NO. 4101 OF 2007WRIT PETITION NO. 4101 OF 2007

Smt.Savitri Chandrakesh Pal. ... Petitioner.

V/s.

1. State of Maharashtra,

2. The Controller of Rationing,

3. The Hon’ble Cabinet Minister, Food and Civil Supply & Consumer Protection, Mantralaya,

4. Jaiambe Grahak Sahakari Sanstha. ... Respondents.

Ms.Poonam P. Bhosale for the petitioner.

V.A.Gangal, special counsel with S.K. Chinchlikar, AGP and Ashok G. Gade for respondent Nos.1 and 3.

Uday Warunjikar with P.A.Pol for respondent No.4.

CORAM: V.C.DAGA, J.CORAM: V.C.DAGA, J.CORAM: V.C.DAGA, J.

DATED: 24th March 2009.DATED: 24th March 2009.DATED: 24th March 2009.

JUDGMENT (PART - II) :JUDGMENT (PART - II) :JUDGMENT (PART - II) : ------------------------

. 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.

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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 :Factural Matrix :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

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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,

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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

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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 :Shocking Fact brought on Record :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

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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

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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

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‘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.

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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

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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 :Preliminary Objections :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.

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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 MaharashtraPrincipal, Micky School v. State of MaharashtraPrincipal, Micky School v. State of Maharashtra,

2005 (4) Mh.L.J. 1153, 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.Ajabrao v.Ajabrao v.

Principal, Kala Vanijya Mahavidyalaya,Principal, Kala Vanijya Mahavidyalaya,Principal, Kala Vanijya Mahavidyalaya, 2008 (6)

Mh.L.J. 436 and M.S.Co-op.Bank Ltd. v. State ofM.S.Co-op.Bank Ltd. v. State ofM.S.Co-op.Bank Ltd. v. State of

MaharashtraMaharashtraMaharashtra, 2008 (6) Mh.L.J. 463.

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 :Decision on Preliminary Objection :Decision on Preliminary Objection : ---------------------------------------------------------------------------------------------------

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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 SchoolPrincipal, Micky SchoolPrincipal, 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

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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 323 A 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

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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 :Rival Submissions on merits :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 ofAnil Rai v. State ofAnil Rai v. State of

BiharBiharBihar, 2001 7 SCC 318 : AIR 2001 SC 3173 followed by

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this Court in the case of Devang Rasiklal Vora v.Devang Rasiklal Vora v.Devang Rasiklal Vora v.

Union Bank of IndiaUnion Bank of IndiaUnion Bank of India, 2004 (2) Mh.L.J. 208.

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

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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

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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 :Consideration :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

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(Smt.Anita Deoraj Naidu v. The State of Maharashtra &Smt.Anita Deoraj Naidu v. The State of Maharashtra &Smt.Anita Deoraj Naidu v. The State of Maharashtra &

ors.ors.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

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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.Union of India v.Union of India v.

Mohammed Ramzan Khan,Mohammed Ramzan Khan,Mohammed Ramzan Khan, AIR 1991 SC 471, 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

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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 ofKunhayammed v. State ofKunhayammed v. State of

KeralaKeralaKerala, AIR 2000 SC 2587 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

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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

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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

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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

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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

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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,

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Food and Civil Supply and Consumer Protection,

Government of Maharashtra, Mumbai to report compliance

of this order within four weeks from today.

(V.C.DAGA, J.)(V.C.DAGA, J.)(V.C.DAGA, J.)

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