Jagruti Mahila Bachat Gat v. The Deputy Controller, Rationing Department

6) The Audit Report for the period of the financial years viz., 2008-2009, 2009-2010 and 2010-2011, has been submitted.

7) The Chairperson of the Bachat Gat has submitted an Affidavit mentioning therein that no offence is registered against her under the Essential Commodities Act, 1955.

7. She submits that, thus, once an allotment order making allotment of the ration shop in question was made in favour of the appellant, the same could have been revoked or cancelled only in a manner known to law. It is her submission that at no point of time the authorities had taken a position that the allotment order, for any reason of non compliance of the requisite condition was required to be recalled or cancelled, for which due procedure in law could have been set in motion. It is her submission that immediately after issuance of the allotment order, on 7 May 2012, a fresh agreement for new premises which was an agreement for the period May 2012 to May 2017 was submitted by the appellant, which was accepted and accordingly a revised allotment letter came to be issued on 12 June 2012, permitting the apellant from operating from such premises. It is thus her submission that once the authority itself accepted the premises available with the appellant, under the agreement in question, as also the appellant having complied with all the other conditions and on such basis an allotment order dated 4 May 2012 having been issued in favour of the appellant, there was certainly no irregularity whatsoever. The appellant was hence legally and validly allotted the ration shop, accepting the compliance of all the terms and conditions of the advertisement. It is thus her submission that this is a case where the authority itself had not taken any action, but respondent No.4 who was aggrieved by the allotment as granted in favour of the appellant, moved the State Government in revision proceedings which came to be allowed by the Hon’ble Minister by an order dated 23 August 2012 / 31 August 2012, whereby, the appellant’s allotment was set aside on the ground that the appellant had not complied with the condition of availability of the shop premises in question for a period of five years. It is hence her submission that all these facts which were relevant and which were part of the record were not considered by the learned Single Judge in passing the impugned order. In support of such contentions, Ms. Mane has drawn our attention to paragraphs 8 and 9 of the impugned order.

8. Ms. Mane also submitted that the appellant’s organization is established for women who are unemployed and who are living below the poverty line. It is submitted that as on date the position is that since the allotment of the ration shop on 4 May 2012, the appellant has continued to conduct the ration shop in the said premises, by virtue of the interim orders passed by this Court i.e. for a period of about 14 years. The submission is also that the approval has been renewed from time to time, and that there are no complaints, whatsoever including of the other societies i.e. respondent Nos.[5] and 6.

9. On the other hand, Mr. Chandurkar, learned AGP, has supported the impugned order. However, he has fairly stated that insofar as the factual position existing on the record of the department is concerned, it is not in dispute that an allotment order dated 4 May 2012, and thereafter, a fresh allotment order dated 12 June 2012 was issued in favour of the appellant, and the appellant since then and till date, has continued to run the ration shop in question. He also submits that certainly this was by virtue of the interim orders passed by this Court on the present appeal.

10. We find that the contest initially was from respondent No.4 Priyanka Mahila Bachat Gat which was represented before the learned Single Judge. The record indicates that respondent No.4 is served, however, respondent No.4 is not represented. It appears that respondent No.4 is not interested to contest the present case. We also find that the appellant had deleted respondent Nos.6, 7 and

9. Also, at no point of time were any steps taken by respondent No.4 to vacate the interim orders passed in this appeal.

11. Having heard the learned counsel for the parties and having perused the record, in our opinion, respondent No.1, the Competent Authority, in the facts of the case, did not dispute that an order dated 4 May 2012 was validly passed, thereby making an allotment of a ration shop in favour of the appellant, accepting the documents as submitted by the appellant which included the leave and license agreement for eleven months. At the relevant point of time, it was open to the Deputy Controller being the allotting authority to reject any of the documents, if they were not complying with the requirements of the advertisement. This was followed by a revised allotment order dated 12 June 2012 which was on the application of the appellant furnishing an agreement for a period of five years, which was in respect of new premises under which the appellant procured such premises for a period from May 2012 to May 2017. Thus, having issued these orders, the rights of allotment of the ration shop came to be recognized in favour of the appellant. If it is to be assumed that such orders were illegally issued and/or issued with material irregularity and/or not complying with the terms and conditions of the advertisement, in such event, the appropriate course of action even in the revision proceedings would have been to direct the appropriate authority that due process in law, be followed for such orders to be cancelled, that is by issuance of a show cause notice, calling upon the appellant to show cause as to why the orders ought not to be cancelled. However, the Revisional Authority passed an order cancelling the allotment by its order dated 23 August 2012 and allotting the ration shop in favour of respondent No.4, Priyanka Mahila Sausahayta Bachat Gat which has been interfered by the impugned order passed by the learned Single Judge. The impugned order considers the position of the appellant as also of respondent No.4 that both these parties did not have the premises for a period of five years under the valid leave and license agreement. It is for such reason, the learned Single Judge has partly allowed the petition filed by the appellant as noted by us hereinabove.

12. We may also observe that the Court cannot be oblivious that throughout there was an interim protection in favour of the appellant, as also respondent No.4 is not before the Court to contest the proceedings as also it is not the position, that the State had at any point of time taken a position contrary to the appellant and/or the allotment orders dated 4 May 2012 and 12 June 2012 and in fact has continued the ration shop in favour of the appellant till date or for that matter none of the parties including the private respondent applied for vacating the interim stay for more than 14 years. Eventually, the appellant has continued to run the ration shop. In fact, the approval in favour of the appellant to conduct the ration shop has been renewed from time to time and there is no complaint whatsoever against the appellant. In these circumstances, we are of the opinion that considering these peculiar circumstances, and without this case being treated as a precedent, it is in the interest of justice that due to the long passage of time, the status quo which has continued to operate needs to enure to the benefit of the appellant, as taking any contrary view would be harsh to the appellant, in the absence of any contest to the position that the appellant, right from 7 May 2012 i.e. three days after the allotment order was made in favour of the appellant, has continued to comply with all terms and conditions; this was not assailed even by the private respondent.

13. In this view of the matter, we are of the opinion that further adjudication of this appeal ought not to be taken forward, and the same would deserve to be disposed of in terms of our aforesaid observations which need to govern the parties, and the State Government, except that for any future non compliance it would be open to the authorities to take appropriate action against the appellant, as permissible in law and by following the lawful procedure.

14. Before parting, we may observe that our aforesaid observations ought not to be taken to mean that the Deputy Controller in discharge of his duties can be permitted to not comply with the conditions of the advertisement, which need to be complied by all the applicants for allotment of a ration shop, with all diligence and/or in letter and spirit from the very inception. This for the reason that in the present case, an agreement of eleven months was accepted, when the requirement in the advertisement, was to the effect that if the premises are being taken on leave and license, such agreement was required to be for minimum period of five years. Thus, any relaxation of the conditions in favour of the applicants could only be in a manner known to law, and for the reasons to be recorded in writing, as any failure to do so would amount to setting up different yardsticks for the same category of applicants, which appears to have happened in the present case, as noticed by the learned Single Judge.

15. In the event, there is any power or authority to relax any of the conditions, which may be essential or non essential conditions, such powers would be required to be uniformly, and in a non-discriminatory manner exercised in respect of all the applications, so as to establish a level playing field. There is no warrant in permitting any applicant to subsequently cure any defect in the application on the principle that the rules of the game cannot be changed after the game has begun. Any allotment order which is made would presuppose that it is a legal and valid allotment and not contrary to law or the terms and conditions of the advertisement. Hence, there cannot be any discretion with the competent authority to subsequently change the norms, as rightly observed by the learned Single Judge to cure any defect in the application so as to permit any applicant to regularise its application, which otherwise is a defective application. Such basic tenets of law are required to be followed by the Deputy Controller.

16. The reasons for us to incorporate the aforesaid objections is to caution the authorities / Deputy Controller to strictly adhere to the terms and conditions and not have an arbitrary regime of any relaxations after the allotment orders are made so as not to cause discrimination between the applicants.

17. Let the Registry forward a copy of this order to the Secretary, Food, Civil Supplies and Consumer Protection Department who shall issue a circular in terms of our observations in paragraphs 14 and 16 (supra), so as to sound a note of caution to the Competent Officers / Deputy Controllers. With the aforesaid observations, the Letters Patent Appeal is disposed of. No costs. (AARTI SATHE, J.) (G. S. KULKARNI, J.)