D.B. Bhosale, J.@mdashRule. Rule made returnable forthwith. Learned Counsel for the Respondents waive service. With the consent, all the Petitions are taken up for final hearing at the stage of admission.
2. We divide this group of Writ Petitions into two groups. The First Group would contain the Petitions from Writ Petition No. 1950 of 2011 to Writ Petition No. 2267 of 2011. (see page No. 1 to 94), whereas the Second Group would contain the Petitions from Writ Petition No. 1778 of 2011 to Writ Petition No. 2275 of 2011. (see page No. 95 to 126) (For short these groups will be referred to as the "First Group" and the "Second Group" respectively and both together as "This Group of Petitions".
3. The Petitioners, in the first group of Petitions, have taken exception to the Circular dated 31.1.2011 issued by the State Government, through its Principal Secretary, Food Civil Supply and Consumer Protection Department (For short "The Circular"). They are seeking declaration that the Circular is illegal, arbitrary and violative of Articles 14, 15(3), 15(4), 19(1)(c), 19(1)(g) and 21 of the Constitution of India and is liable to be quashed and set aside. In the second group of Writ Petitions, the Petitioners have challenged the proclamations issued by District Supply Officers, inviting applications for allotment of kerosene retail licenses at various villages in their respective districts. The Petitioners in this Group of Petitions, are also seeking injunction against the Respondents restraining them from discontinuing/reducing/withdrawing their kerosene quota.
4. The State Government, by issuing the circular, decided to discontinue kerosene quota of all fair price shops, such as the shops of the Petitioners, who presently distribute kerosene in their villages without retail kerosene licenses. The Government also issued directions to all concerned to take steps to grant licenses to self help groups as per the order of the Supreme Court dated 10.5.2010 passed on the Interim Application No. 90 of 2009 in Writ Petitions (Civil) No. 196 of 2001. In pursuance thereof, as submitted by the learned Government Pleader, the concerned offices/department issued the impugned proclamations, inviting applications from self help groups, for granting kerosene licenses at all such places/villages where kerosene is being distributed through fair price shops without retail kerosene licenses. These directions/decisions taken by the Government and the proclamations issued in pursuance thereof are impugned in this Group of Petitions.
5. For addressing the questions/issues raised in this Group of Petitions, and for considering challenge to the Circular and to the Proclamations, we deem it appropriate to mention the background facts against which the Circular and the Proclamations are issued. The background facts are necessary, since the Circular makes reference to different orders passed by this Court as well as the order passed by Supreme Court in different proceedings, where the issues/questions raised were similar. We will make reference to the Circular in detail little later.
The State Government issued the Government Resolution dated 3.11.2007 (For short "The G.R. of 2007") laying down the procedure for issuing fresh Fair Price Shops and Kerosene Retail licenses to SelfHelp Groups. It is necessary to make it clear that this Government Resolution is not under challenge in this group of Petitions.
In a Writ Petition bearing Writ Petition No. 303 of 2008 filed before the Nagpur Bench of this High Court, validity of the G.R. of 2007 was challenged. The Division Bench heard and disposed of the said Petition vide judgment dated 15.6.2009. In the judgment, a reference to Writ Petition No. 196 of 2001 filed in the Supreme Court by the People''s Union for Civil Liberties has been made. After making brief reference to the orders passed by the Supreme Court in Writ Petition No. 196 of 2001, in paragraph Nos. 11 and 16 of the said judgment, the Division Bench made the following observations:
11. A plain reading of the order passed by the Apex Court referred to hereinabove clearly shows that the unusual direction given by the Apex Court was in view of the almost accepted fact that large scale corruption is involved and there is dire need to evolve just, fair and transparent procedure in Public Distribution System in order to ensure that the citizen gets food grains at a reasonable price keeping in view of his economic standard. Order of the Supreme Court makes it evident that the Apex Court is wholly unhappy and seriously concerned about the existing procedure prevalent in Public Distribution System and, therefore, constituted Central Vigilance Committee headed by Justice D.P. Wadhwa. The Committee was asked to look into factors which are affecting the proper functioning of the Public Distribution System and was also asked to suggest remedial measures such as mode of appointment of dealers; procedure which will bring transparency in selection of dealers etc.
16. In view of the above referred facts and circumstances, it is evident that serious and marathon exercise is undertaken by the Apex Court for the purposes of streamlining all the facets of Public Distribution System in this country for making it more effective and efficient. All the State Governments including the State of Maharashtra are party to the said petition. Though the second report appears to be submitted by the Central Vigilance Commission headed by Justice Wadhwa (retired), this Court is not aware whether the Apex Court has finally taken any decision thereon by issuing directions to the various States in this country. It is in such circumstances, we are of the view that it will be appropriate for the State Government to seek necessary clarification within a period of two months from today whether the procedure of issuance of fresh fair price shop licenses as well as kerosene retail dealerships evolved by the State Government vide Government Resolution dated 3.11.2007 can be continued till such time the Apex Court takes appropriate decision. We expect the State Government not to issue any fresh fair price shop license or kerosene retail dealership in the meantime.
(Emphasis supplied)
Insofar as validity of the G.R. of 2007 on the ground of Legislative competency is concerned, the Division Bench observed that "Since the Petitioners have not pressed the issue regarding the legislative competency of the State Government in issuing Government Resolution dated 3.11.2007, it is not necessary for us to adjudicate upon the same in the present Writ Petition and the said issue is kept open".
6. The State Government in view of the observations made in the judgment dated 15.2.2009 in Writ Petition No. 303 of 2008 filed an Interim Application being I.A. No. 90 of 2009 in Writ Petition (Civil) No. 196 of 2001 before the Supreme Court, seeking permission to implement the G.R. of 2007 in Public Distribution System in Maharashtra State in the interest of justice. The State Government is Respondent No. 7 in the said Writ Petition (Writ Petition No. 196 of 2001). This interim application was heard by the Supreme Court and on 10.5.2010 the following order was passed:
We have heard learned Counsel for the parties.
As an interim measure, the State of Maharashtra is permitted to issue licenses for Fair Price Shops and Kerosene Retail Shops to Self Help Groups. They may distribute it through Gram Panchayat, Cooperative Society, Women/Cooperative Society run by women, ExArmy Cooperative Society, Handicapped, Widows and greater priority would be given to the Widows of Army men.
Place this application on 21.7.2010.
(Emphasis supplied)
None of the learned Counsel appearing in this Group of Petitions could tell us as to what happened on 21.7.2010 or thereafter. From bare perusal of the order passed by the Supreme Court dated 10.5.2010, it is clear that the State Government is permitted to issue licenses for Fair Price Shops and Kerosene Retail Shops to SelfHelp Groups by way of interim measure. It further appears that the State Government is permitted to distribute it through Gram Panchayat, Cooperative Society, Women/Cooperative Society run by women, ExArmy Cooperative Society, Handicapped/widows and the widows of Army men.
7. This Court (Aurangabad Bench) also had an occasion to deal with a group of six Writ Petitions (Writ Petition Nos. 891, 698, 736, 737, 1252 and 1799 of 2008), whereby the G.R. of 2007 so also the consequent steps taken by District Supply Officers were challenged. The contention urged in this Group of six Petitions on behalf of the Petitioners was that they were running Fair Price Shops since last so many years and were permitted to distribute kerosene and that their kerosene quota cannot be discontinued/withdrawn on the basis of the G.R. of 2007. As observed earlier, by the G.R. of 2007, the State Government decided to invite applications from SelfHelp Groups without disturbing the existing Fair Price Shops and Kerosene Retail License holders. The Petitioners in the group of six petitions were admittedly not holding kerosene retail licenses. When the group of six Petitions was disposed of, the impugned Circular was not in the field. It appears that in view of the threat of either withdrawal/discontinuation of their kerosene quota or cancellation of the permission granted to distribute kerosene through their shops, the Petitioners had challenged the G.R. of 2007. When those six Writ Petitions were filed, the order of the Supreme Court dated 10.5.2010 was also not in the field. The Division Bench dismissed the Group of six Petitions vide order dated 21.12.2010. Though the order of the Supreme Court dated 10.5.2010 was not there when the Writ Petitions were filed, the said order was before the court and it was considered by the Division Bench while disposing of this Group of six Writ Petitions vide judgment dated 21.12.2010.
In the concluding paragraph of this judgment (21.12.2010), after considering prayer made by learned Counsel for the Petitioners seeking statusquo in respect of distribution of kerosene, the State Government and its authorities were directed to maintain statusquo in respect of distribution of kerosene through Fair Price Shops run by the Petitioners, for a period of three months from the date of the order.
Admittedly the Petitioners in the group of six Petitions were not having licenses to distribute kerosene. The State Government had permitted them, for the convenience and benefit of the card holders in rural area to distribute kerosene through their Fair Price Shops. In other words, in those Writ Petitions, though Petitioners were having Fair Price Shop licenses, admittedly they were not having licenses for distribution of kerosene and that they were only permitted to distribute kerosene in their respective villages.
8. One of the Petitioners (i.e. in W.P. No. 891 of 2008) in the group of six Petitions carried the judgment dated 21.12.2010 of this Court to the Supreme Court. We were informed that the SLP was fixed for hearing before the Supreme Court on 1.4.2011, and hence on 22.3.2010, after we closed this group of petitions for judgment, at the request of learned Counsel for the parties, we adjourned it to 7.4.2010 for considering the effect of the order, that may be passed by the Supreme Court on 1.4.2011, on merits of these Petitions.
9. The Petitioners in the group of six Petitions and the Petitioners in this Group of Petitions are similarly placed. All the Petitioners, in this Group of Petitions also, have Fair Price Shop licenses and they were also permitted to distribute kerosene in their respective villages without retail kerosene licenses. An attempt was made by some Petitioners to contend that the permission granted to them was in the nature of license and that they had paid the license fee. We would deal with this argument little later.
10. In the backdrop of the facts mentioned in the foregoing paragraphs, the State Government issued the Circular, impugned in the first group of Writ Petitions. It would be advantageous to reproduce Official translation of the said Circular for better appreciation of the submissions advanced by learned Counsel for the parties and to address the questions raised in this Group of Petitions.:
Translation of the Circular
dated 31.1.2011
Regarding discontinuing (stopping) kerosene quota of those Fair Price Shopkeepers to whom kerosene quota is given in the absence of kerosene license and regarding making selection of Self Help Group in their place.
Government of Maharashtra, Food, Civil Supplies & Consumer Protection Department, Government Circular No. Petition 2008/27/M. No. 105/CS 28, Mantralaya Extension, Mumbai - 400032.
Date: 31 January, 2011.
Reference: Government Circular No. Petition
2008/27/M. No. 105/CS 28, Dt. 18/3/2010.
Government Circular
In order to make distribution of kerosene to the eligible Ration Card Holders under Public Distribution System, it is necessary to have Retail kerosene License under the Maharashtra Scheduled Commodities Retail Trade License Order, 1979 or to have Hawker''s License under the Maharashtra kerosene Trade License Order, 1966. However, as there is no kerosene License holder at some places in the State, distribution of kerosene is made through the Fair Price Shopkeepers functioning at such places. Such arrangement is made through local authority only with an intention that inconvenience should not be caused to the eligible ration card holders. For sanctioning kerosene licenses, the Government has prescribed detailed procedure and it becomes necessary to issue license only by such procedure.
2. As per the Government Resolution Dt. 3/11/2007, as the Licensing Authority has published (displayed) Notifications for sanctioning kerosene licenses at the place of Fair Price Shopkeepers, the said Fair Price Shopkeepers had filed Writ Petitions No. 697, 698, 736, 737, 1799/2003 in the Hon''ble High Court at it''s Aurangabad Bench. In the matter of the aforesaid Writ Petitions, the Hon''ble High Court has passed the final order on the Dt. 21/12/2010 that " In pursuance of the interim order passed on the Dt. 10/5/2010 by the Hon''ble Supreme Court on I. A. No. 90/2009 in Writ Petition No. 196/2001, the said Writ Petitions are disposed of. However, the kerosene quota of the said shopkeepers should not be discontinued (stopped) by the State Government upto three months from today."
3. Moreover, prior to this, the Hon''ble High Court, Aurangabad Bench had given direction on the Dt. 19 January, 2010 that an appropriate decision should be taken within eight weeks in respect of those Fair Price Shopkeepers to whom kerosene quota is given in the absence of kerosene license and that in the meantime the kerosene quota of such petitioning - shopkeepers should be continued as per the interim order passed earlier, by this Court on the Dt. 31/1/2008. Thereupon, the State Government by it''s Circular Dt. 18 March, 2010 had issued orders to all the Regional Offices that as regards the said shopkeepers, action will be taken taking into account the directives given in future in the matter before the Hon''ble Supreme Court and in the mean time kerosene quota of such shopkeepers will be continued.
4. Taking into account the order dated 21/12/2010 of the Hon''ble High Court, Aurangabad Bench, and the order Dt. 10/5/2010 of the Hon''ble Supreme Court, it is necessary to discontinue (stop) the kerosene quota at the place of such Fair Price Shopkeepers to whom kerosene quota has been given in the absence of kerosene license and to select Self Help Groups at such places. By virtue of the same, the Government Circular No. Petition 2008/ 27/ M. No. 105/CS 28, Dt. 18 th March 2010 under reference, is cancelled. Moreover, as per the order Dt. 21/12/2010 of the Hon''ble High Court, Aurangabad Bench, kerosene quota to all such shopkeepers should be given upto 3 months that is to say up to the Dt. 20/3/2011 and from 21/3/2011 kerosene quota of all such shopkeepers should be discontinued (stopped).
5 . In pursuance of the interim order passed by the Hon''ble Supreme Court on the Dt. 10/5/2010 in respect of I. A. No. 90/2009 in Writ Petition No. 196/2001, all the Regional Offices had been given detailed instructions by the Government Circular Dt. 25/6/2010 in respect of taking action to sanction Fair Price/ Rationing Shop/ Retail kerosene licenses to the Self Help Groups, as per the Government Resolution dated 3/11/2007.
6. Therefore, action should be initiated [by publishing (display) proclamation,to invite applications from Self Help Groups, to select Self Help Groups etc.] as per the instructions given under the Government Circular Dt. 25/6/2010 in respect of granting kerosene licenses to Self Help Groups at such places where the kerosene quota has been given to the Fair Price Shopkeepers in the absence of kerosene license.
7. If Self Help Group has not been selected then in the mean time, in order to avoid the inconvenience to the public, the necessary action should be taken, as per Rules, for connecting the said kerosene licenses only to the authorised/such shopkeepers, holding the valid kerosene license, till the Self Help Group is selected.
By order and in the name of the Governor of Maharashtra.
Sd/M.
B. Hajari (M. B. Hajari) Under Secretary, Government of Maharashtra
(Emphasis supplied)
11. We have also perused the Proclamation, impugned in the Second Group of Petitions. From its perusal, it appears that earlier G.R. dated 3.1.2006 had been revoked. By the G.R. dated 3.1.2006, the decision was taken to cancel the existing Fair Price Shops and Retail Kerosene licenses in a phased manner and hand them over to Self Help Groups. Against this Government Resolution (dated 3.1.2006), the Fair Price Shops and Retail Kerosene License holders and their organizations approached the High Court. Similarly, the Members of the Legislative Assembly also demanded reconsideration of the decision and against this background, the G.R. dated 3.1.2006 was reconsidered and the G.R. of 2007 was issued. The Official translation of the relevant paragraph of the G.R. of 2007 reads thus:
1. In the aforesaid circumstances, now Government after reconsideration hereby cancelled above numbered Govt. Resolution dated 3rd January, 2006 and in that place existing Fair Price Shops/Retail Kerosene Licenses shall be kept as it is; for those licenses which are cancelled as of now or which would be cancelled henceforth, wherever resignation is submitted and wherever new licenses to be given on account of increase in population, so also for any reason in future, Fair Price Shops and Kerosene Retail licenses is to be given then same should be given to Self Help Groups decision is taken to that effect. So also, wherever Self Help Group would not be available, then in those places as per the existing preference schedule, Fair Price Shop & Retail Kerosene license should be approved such decision is also taken by the Government. In consonance with the said decision of the Government for granting Fair Price Shop & Retail Kerosene Licenses following action be taken.
(Emphasis supplied)
12. From perusal of the circular, in the backdrop of the aforementioned facts, it is clear that the steps taken by the State Government to issue licenses for distribution of kerosene to card holders was on the basis of the Supreme Court order dated 10.5.2010, passed on the Interim Application filed by the State Government in Writ Petition (Civil) No. 196 of 2001. While doing so, as indicated in the G.R. of 2007, the existing "Fair Price Shops" and "Retail Kerosene Licenses" have not been touched/cancelled.It is further clear that the villages, where kerosene is being distributed through fair price shops without having retail kerosene licenses, they have decided to issue licenses, after following the due procedure, in favour of self help Groups, as per the order dated 10.5.2010.
13. It is against this backdrop, we would now like to consider the challenge to the impugned Circular. With the assistance of learned Counsel for the parties, we have carefully gone through the Circular. From its perusal, it is clear that though several orders passed by this Court were taken into consideration by the State Government, the direction, to the concerned authorities to take steps to grant licenses to self help groups, has been issued in view of the order passed by the Supreme Court dated 10.5.2010 on the Interim Application filed by the State Government in Writ Petition (Civil) No. 196 of 2001.
14. It is true that a reference to the order dated 21.12.2010 passed by this Court is also made in the Circular. By this order, while dismissing the group of six Petitions, in the concluding paragraph, the State Government and its authorities were directed to maintain statusquo in respect of distribution of kerosene through Fair Price Shops run by the Petitioners therein, for a period of three months from the date of the order. The Petitioners, in this group of petitions, are aggrieved by this direction also, on the basis of which further directions have been issued by the State Government in the circular to discontinue kerosene quota of all fair price shops, who were permitted to distribute kerosene without issuing retail kerosene licenses in their favour.
15. The Interim Application, on which the Supreme Court passed the order 10.5.2010, was filed by the State Government in view of the observations/directions made/issued in the order of the Division Bench (Nagpur Bench) dated 15.6.2009 passed in Writ Petition No. 303 of 2008. The State Government in the said Interim Application made the following prayer:
Permit Government of Maharashtra to implement Government Resolution dated 3.11.2007 in Public Distribution System in the interest of justice.
Though, the State Government sought permission of the Supreme Court to implement the G.R. of 2007 in Public Distribution system, the Supreme Court did not grant it. In other words, the Supreme Court has not passed order in terms of the aforementioned prayer. The order of the Supreme Court begins with the expression "As an interim measure", thereby making it clear that issuance of licenses for Fair Price Shops and Kerosene Retail Shops would be by way of an "interim measure", i.e. pending the hearing and final disposal of the Interim Application and/or Writ Petition (Civil) No. 196 of 2001. The Interim Application and Writ Petition are still pending. As observed earlier, none of the learned Counsel for the parties are in a position to state as to what happened on 21.7.2010 or thereafter. Similarly, they are also not in a position to state whether any further order/s is/are passed by the Supreme Court in the Writ Petition having any effect on merits of this Group of Petitions.
16. The impugned Circular, thus, makes reference to the orders dated 21.12.2010 and 10.5.2010 passed by the High Court and the Supreme Court respectively. From the contentions urged by learned Counsel for the Petitioners so also from the contents of the Petitions, it is clear that the challenge to the Circular in this Group of Petitions is two fold. Firstly, as reflected in paragraph 4 of the Circular, to the direction issued in pursuance of the judgment dated 21.12.2010 to discontinue kerosene quota of all Fair Price Shops, which do not hold retail kerosene licenses, after the period of three months, and secondly, to the directions issued to all concerned to take steps to grant licenses to Self Help Groups, as per the order of the Supreme Court dated 10.5.2010. The Petitioners in this Group of Petitions are aggrieved by these directions issued in the impugned Circular.
17. The Circular shows that the directions were issued to the concerned to take steps to grant licenses for Fair Price Shops and Kerosene Retail Shops in view of the permission given by the Supreme Court vide order 10.5.2010. It gives direction to all the concerned to issue Proclamations, inviting applications from SelfHelp Groups for granting licenses for Kerosene Retail Shops, where kerosene is being distributed through Fair Price Shops without retail kerosene licenses. The Circular, in the concluding paragraph states that if SelfHelp Groups are not available/recognized, the kerosene at such places be distributed only through the Authorized/Licensed Kerosene Retail Shops, to avoid inconvenience to the people/cardholders. The Circular, however, does not make it clear that if in a particular village, there is no such Authorized/Licensed Kerosene Retail Shop, through whom they propose to distribute kerosene to the card holders in such villages.
18. Mr. Dhorde, learned Counsel advanced leading arguments in this Group of Writ Petitions, followed by Mr. Talekar, Mr. Thombre and Mr. Raghuwanshi. All other learned Advocates appearing for different Petitioners adopted the submissions advanced by these learned Counsel. It was vehemently contended that under any circumstances, the State Government cannot abruptly withdraw supply of kerosene quota to the Fair Price Shops of the Petitioners merely because they are not holding licenses for distribution of kerosene in their villages. It was further submitted that all Petitioners, in this Group of Petitions, have been distributing kerosene on the basis of permissions granted by the concerned authorities for more than 1015 years, and in some cases, 20 years and there were no complaints of whatsoever nature against them. It was then submitted that the Circular is not only illegal and arbitrary, but also violative of the provisions of the Constitution of India and, therefore, deserves to be quashed and set aside. According to learned Counsel for the Petitioners, the circular was issued without hearing the Petitioners and that the contents thereof are not consistent with the provisions of the Maharashtra Kerosene Dealers'' Licensing Order, 1966 (For short, "Kerosene Licensing Order"), and with Government Resolutions which lay down the procedure for issuing licenses for distribution of kerosene. It was further submitted that the procedure laid down under the Kerosene Licensing Order and by various Government Resolutions need to be followed for granting licenses and they ought to be granted only in accordance with the priority list mentioned therein. Our attention was also invited to Clause 3 and Clause 13 of the Kerosene Licensing Order to submit that in exercise of the powers under these clauses the permission was granted to the Petitioners, by the concerned authorities for distribution of kerosene without issuing license in terms of the Form II of the said Order. Therefore, unless the permissions given to all the Fair Price Shops, such as the Fair Price Shops of the Petitioners, is either suspended or cancelled, their kerosene quota cannot be abruptly discontinued/withdrawn, as has been done by issuing the impugned Circular. Lastly it was submitted that either the G.R. of 2007 or the circular does not contemplate discontinuation of kerosene quota of the Fair Price Shops, such as the shops of the Petitioners. According to the Petitioners, even if licenses are issued in favour of self help groups, the Petitioners quota of kerosene need not be discontinued.
19. Under Clause 3 of the Kerosene Licensing Order, no person is authorised to carry on business as a Dealer except under and in accordance with the terms and conditions of the license issued in this behalf by the Licensing authority for the purpose of sale and storage. Clause 13 of the Kerosene Licensing Order empowers the State Government to grant exemptions, if it is necessary in the public interest so to do, to any person or class of persons from the operation of or all or any of the provisions of this order in such period and subject to such condition, if any, as may be satisfied, and may at any time suspend or cancel such exemption.
The Kerosene Licensing Order has been made by the State Government in exercise of the powers conferred by Clauses (c), (d), (i), (ii) and (j) of Sub-Section 2 of Section 3 of the Essential Commodities Act, 1955 (X of 1955), and of all other powers enabling the Government of Maharashtra in this behalf, read with the Government of India, Ministry of Mines and Fuel Order No. S.O. 3524, dated 13.11.1962.
It was, therefore, submitted that exemption as contemplated by Clause 13, permitting the Petitioners to distribute kerosene was granted by the State Government, and unless the permission/exemption granted to distribute kerosene is either suspended or cancelled, the directions as issued by the impugned Circular, cannot be sustained in law.
20. We are not convinced with the submission for more than one reason. Firstly, none of the Petitioners could place on record any order issued by the State Government granting exemption as contemplated by Clause 13. Even if it is assumed that such exemption was granted and in pursuance thereof, permission to the Petitioners was granted to distribute kerosene, in our opinion, issuance of the G.R. of 2007 and, thereafter the impugned Circular would amount to suspension or cancellation of the exemptions granted earlier. At this stage, we observe that though in this Group of Petitions the G.R. of 2007 is not challenged, at no point of time either this Court or the Supreme Court has quashed/set aside or stayed the said G.R.
21. It cannot be overlooked that after seeking clarification, as directed by this Court vide order dated 15.6.2009 in Writ Petition No. 303 of 2008, and after the order dated 10.5.2010 passed by the Supreme Court, the State Government has issued the Circular, so also the Proclamations.
22. Learned Counsel for the Petitioners in some of the Petitions and more particularly Writ Petition No. 1778 of 2011 and in Writ Petition No. 2267 of 2011 made feeble attempt in submitting that the permissions granted to the Petitioners, more than 10 to 15 years ago, to distribute kerosene in their respective villages is in the nature of license. Our attention was also invited to some challans, by which some monies were paid by the Petitioners, to contend that license fee was also paid by them. However, when we asked learned Counsel for the Petitioners, to show the licenses issued either under the Kerosene Licensing Order, or under the Maharashtra Scheduled Commodities Retail Dealers'' Licensing Order, 1979, they could not and did not place the licenses granted to them under these Orders. Even after perusal of the challans, we were satisfied that the payments were not made as License fees/renewal fees. They even could not bring any material on record to show that the licenses were issued to them in terms of the Kerosene License Order, or under the Maharashtra Scheduled Commodities Retail Dealers Licensing Order, 1979 or that they had followed the procedure for seeking licenses and/or renewal thereof in terms of these Orders. In view thereof, the submission made by learned Counsel for the Petitioners in this Group of Petitions that the permissions granted to them to distribute kerosene, in fact are licenses, also deserves to be rejected outright.
23. Learned Counsel appearing for the Petitioners in Writ Petition No. 2267 of 2011 invited our attention to Exhibit C Colly at page 28 of the Petition, to contend that license was granted to the Petitioner to distribute kerosene under the Maharashtra Scheduled Commodities (Regulation of Distribution) Order, 1975 (for short "the Order of 1975). It was further contended that this license was issued on 25.8.1997 and it was renewed from time to time and it will now expire on 31.12.2013. It was submitted that under Clause 3A of the Order of 1975, priority list in issuing authorisation to Ration Shops is provided for and in the said priority list, the Petitioners stand first and, therefore, even if the State Government desire to issue fresh license, they should offer it to the Petitioners.
A glance at ExhibitC shows that it was issued under the provisions of the Order of 1975. The Order of 1975 deals with authorisation of Fair Price Shops only. It does not contemplate issuance of Retail Kerosene license or even granting permission to distribute kerosene for that matter. Merely because, there is an endorsement on this license, permitting the Petitioners to distribute kerosene, it cannot be stated that the authorisation issued under the provisions of the Order of 1975, is a license for distribution of Kerosene or that Kerosene Retail License was issued in favour of the Petitioners. At the most, it was only permission to distribute kerosene without issuing retail kerosene license.
24. The Public Distribution System in this Country is intended to ensure that the citizen gets the essential commodities including kerosene at a reasonable price keeping in view his economic standards. The Supreme Court in Writ Petition No. 196 of 2001 has given directions in the light of, the almost accepted fact, that large scale corruption is involved and there is a dire need to evolve just, fair and transparent procedure in Public Distribution System, suggested the remedial measures. The Central Vigilance Commission was constituted, headed by a retired Judge of the Supreme Court. Mr. Justice D.P. Wadhwa, the retired Judge of the Supreme Court was requested to head the Commission. The parameters/scope of the reference to the Commission was also decided by the Supreme Court. The Commission was asked to look into the facts, which are affecting proper functioning of the Public Distribution System and was also asked to suggest remedial measures such as "mode of appointment of dealers, the procedure which will bring transparency in selection of the dealers etc." The Commission accordingly submitted its report and it was accepted by the Supreme Court. The implementation of the suggestions given by the Commission were however restricted to Delhi alone. The Commission was, therefore, requested to undertake similar exercise in respect of whole of India and was asked to submit its report within time frame. It appears that the second report of the Commission has also been submitted to the Supreme Court. We were informed by learned Counsel for the parties that further orders have not been passed by the Supreme Court so far to bring about uniformity and transparency in the existing Public Distribution System all over India. The Supreme Court proposes to evolve new policy or procedure in the Public Distribution System on the basis of the recommendations and suggestions given in the second report of the Central Vigilance Commission. It is against this backdrop, the Division Bench vide judgment and order dated 15.6.2009 in Writ Petition No. 303 of 2008 relegated the State Government to seek clarification from the Supreme Court before issuing licenses on the basis of the G.R. of 2007.
25. The State Government, accordingly, approached the Supreme Court by way of Interim Application and the Supreme Court on 10.5.2010 passed the aforementioned order "as an interim measure". We are satisfied that the Circular has been issued in view of the order of the Supreme Court dated 10.5.2010. The submission that the State Government intend to issue permanent licenses, in our opinion, is devoid of any merit. The State Government has made it clear in the impugned Circular that they propose to issue licenses in view of the order of the Supreme Court dated 10.5.2010, obviously by way of an interim measure and/or subject to final outcome of the pending Interim Application and/or of the Writ Petition or the further directions issued therein. It was necessary for the State Government to make it clear that issuance of licenses for kerosene retail shops would be by way of "an interim measure". We hope that the State Government will at least now make this clear to all such persons to whom they would issue licenses, in view of the Proclamations issued and to be issued, so also in the licenses itself will make an endorsement that it was granted by way of an interim measure and it would be subject to the order/s that may be passed by the Supreme Court in the pending proceedings.
26. Thus, we are satisfied that the State Government has taken steps for issuance of licenses in view of the order passed by the Supreme Court dated 10.5.2010 and, therefore, the challenge to the Circular cannot be sustained. The only remedy open to the Petitioners was to approach the Supreme Court, seeking clarification/modification of the order dated 10.5.2010. We make it clear that we are not suggesting to the Petitioners to approach the Supreme Court. In our opinion, it was expedient for the Petitioners to wait till the decision is taken by the Supreme Court and appropriate policy or procedure is evolved for streamlining the Public Distribution System in order to make it just, fair and transparent. The Petitioners cannot oppose the move of the State Government, taken on the basis of the order of the Supreme Court for issuing kerosene retail licenses to Self Help Groups, at all such places where presently distribution of kerosene is going on through Fair Price Shops, without granting them retail kerosene licenses.
27. On 7.4.2011, this Court was informed that in the SLP against the order dated 21.12.2010 filed by the Petitioners in one of the Writ Petitions (W.P. 891 of 2008) out of the Group of six Writ Petitions, the Supreme Court on 1.4.2011 while granting permission to file SLP and issuing notice, granted stay of the judgment dated 21.12.2010 until further orders. The Supreme Court further observed that in the meantime the Petitioners may approach the concerned authority for correct interpretation of the 2007 policy. There is no dispute that the policy mentioned in the order of the Supreme Court refers to the policy reflected in the G.R. of 2007.
28. Mr. Dhorde learned Counsel for the Petitioners submitted that since the judgment dated 21.12.2010 has been stayed by the Supreme Court, the Government cannot implement even the impugned Circular. He further submitted that this Court in the judgment dated 21.12.2010 had considered the order of the Supreme Court dated 10.5.2010 and, therefore, the Government cannot implement the G.R. of 2007. In other words, it was submitted that till the SLP is either decided finally or till the further orders are passed by the Supreme Court, the State Government cannot implement the Circular or grant licenses in pursuance of the Proclamations issued or issue fresh Proclamations. Mr. Talekar, learned Counsel for the Petitioners submitted that in view of the order passed by the Supreme Court allowing the Petitioners to approach the Government for seeking correct interpretation of the 2007 policy, the Petitioners in this Group of Petitions also would like to approach the State Government for seeking correct interpretation of the G.R. of 2007 (the 2007 policy) within a period of two weeks and if the Government is prepared to consider their representation, they would not even press the present Writ Petitions on merits. Almost all learned Counsel appearing for different Petitioners in this Group of Petitions also joined Mr. Talekar in making such prayer. It was further submitted that if the Petitioners are allowed to make representations and if directions are issued to the State Government to consider their representation, till the Government consider the same and take appropriate decision, interpreting their policy of 2007, the Petitioners may be allowed to distribute kerosene as they have been doing all these years.
29. On the other hand, Mr. Khandare, learned Government Pleader submitted that the order of stay granted by the Supreme Court in one of the petitions will not have any effect on this Group of Petitions. He submitted that basic difference between the Group of six Petitions, which was decided vide order dated 21.12.2010, and the present Group of Writ Petitions is that in the Group of six Petitions, the Petitioners had challenged the G.R. of 2007, whereas in the present Group of Petitions, the Petitioners have challenged the impugned Circular and the Proclamations issued on the basis of the Supreme Court order dated 10.5.2010 and not on the basis of the G.R. of 2007. In other words, he submitted that under any circumstances, the Government need not stop implementation of the order of the Supreme Court on the basis of which the Circular and the Proclamations were issued. He further submitted that the order dated 21.12.2010 and even the order of the Supreme Court dated 1.4.2011 in the SLP cannot be taken advantage of by the Petitioners in this Group of Petitions since those orders are passed against/in favour of the Petitioners in the Group of Six Petitions.
30. It is true that the Supreme Court has granted stay and also allowed the Petitioners to approach the concerned authority for correct interpretation of the 2007 policy. Though the Supreme Court has granted stay of the judgment dated 21.12.2010 of this Court, it has not granted stay to the G.R. of 2007, which is the subject matter of the S.L.P., nor has passed any order restraining the State Government from proceeding ahead with the process of issuing kerosene licenses on the basis of the Circular or its earlier order dated 10.5.2010. The effect of the order of stay, as submitted by learned Government Pleader, would be the stay to the direction, issued by the judgment dated 21.12.2010, that the kerosene quota of the Petitioners be discontinued on expiry of the period of three months from the date of the judgment.
31. In this Group of Petitions, the challenge is only to the Circular and to the Proclamations issued in pursuance thereof. From bare perusal of the Circular, it is clear that the direction are issued to the concerned District Supply Officers to take steps to issue licenses to Self Help Groups, on the basis of the order of the Supreme Court dated 10.5.2010. In our opinion, stay to the Circular, as prayed for, or to stay the process of issuing fresh licenses in pursuance thereof would amount to interfering with the order passed by the Supreme Court dated 10.5.2010. We cannot pass such order. However, if the Petitioners desire to approach either the State Government for seeking correct interpretation of the G.R. of 2007, or to the Supreme Court for seeking clarification/modification of the orders dated 1.4.2011 and dated 10.5.2010, this Court cannot stop them from doing so. In that event, it is open to the Government to interpret their G.R. of 2007 (the 2007 policy) and communicate their decision to the Petitioners or to the Supreme Court as they deem fit and proper. In our opinion, in any case, the Government cannot be stopped from issuing licenses to Self Help Groups on the basis of the order of the Supreme Court dated 10.5.2010. In other words, the Circular so also the Proclamations cannot be faulted.
32. That takes us to consider whether we should allow the Petitioners to distribute kerosene to the cardholders in their respective villages, as they have been doing all these years, till licenses are granted to Self Help Groups, as per the order dated 10.5.2010. In the Circular, the State Government has made it clear that kerosene quota of all Fair Price Shop keepers, who do not hold Kerosene Retail licenses, would be discontinued after the period of three months, as per the order dated 21.12.2010 passed by this Court. The period of three months got over on 21.3.2011. We have extended that period after closing these petitions for judgment.
33. There is no dispute that in pursuance of the order dated 10.5.2010 passed by the Supreme Court, the process of issuing licenses in the villages, where the Petitioners distribute kerosene without licenses, is not yet completed. In most of the districts, the concerned authorities have not even taken steps for issuing Proclamations, inviting applications for licenses. The State Government in the impugned Circular has, however, issued direction to all the concerned in the State to discontinue quota of all Fair Price Shops, such as the shops of the Petitioners, from 21.3.2011, who distribute kerosene without licenses. Such direction is issued in view of the order passed by this Court dated 21.12.2010. This order has now been stayed by the Supreme Court vide order dated 1.4.2011 in the Petition filed by one of the Petitioners in the Group of six Petitions. It is true that the order dated 21.12.2010 would operate only against the Petitioners in the Group of six Petitions and even the order of the Supreme Court would operate in favour of those Petitioners. However, fact remains that the Government has issued Circular, which cover all similarly placed Fair Price Shops in the State, on the basis of the order passed by this Court dated 21.12.2010. In view thereof, either the State Government will have to seek clarification, insofar as the direction to discontinue kerosene quota to all such Fair Price Shops on expiry of the three months, from the Supreme Court or take their own decision by correctly interpreting the G.R. of 2007 which is the subject matter of the SLP It is also open to the Petitioners, to seek either intervention in the SLP or in the interim application or in the writ petition or seek correct interpretation from the Government, of the G.R. of 2007. Insofar as the direction issued, in the Circular, to all concerned to take steps to issue licenses to Self Help Groups, in our opinion, cannot be faulted.
34. We are convinced that if kerosene quota of all Fair Price Shops is discontinued as per the impugned Circular, that will undoubtedly cause inconvenience to the cardholders in those villages. There is no dispute that in almost all villages, where the Petitioners are having Fair Price Shops and distribute kerosene, do not have Kerosene Retail License holders. It would not be practicable, as submitted by learned Government Pleader, to attach such cardholders in the villages, where there are no Kerosene Retail License Holder, to the neighbouring village. That will further cause inconvenience to the cardholders, apart from the fact that it is impracticable. Keeping that in view and considering the order passed by the Supreme Court, granting stay of the order dated 21.12.2010 vide order dated 1.4.2011, the Government cannot be allowed to discontinue the kerosene quota of Fair Price Shops, which were permitted to distribute kerosene without licenses, till the licenses are issued in favour of Self Help Groups, in all such villages, as allowed by the Supreme Court vide order dated 10.5.2010.
35. In the circumstances, challenge to the Circular and the Proclamations fails. We dispose of this Group of Petitions by the following order:
a) The State Government and their authorities are directed to make it clear to all applicants, who will be applying for Kerosene Retail Licenses, in pursuance of the Proclamations issued or to be issued that the licenses, if granted, would be subject to outcome of the Interim Application No. 90 of 2009 and/or Writ Petition No. 196 of 2001, pending in the Supreme Court and/or subject to further directions, if any, issued therein. The State Government shall also make this clear, either by issuing corrigendum or by informing all the applicants in writing. The Government and its Authorities shall also make an endorsement to that effect on the licenses, as and when issued.
b) It is open to the Petitioners to approach the State Government, within a period of three weeks from today, seeking correct interpretation of the G.R. of 2007.
If the Petitioner/s approach the State Government, their application/representation may be considered expeditiously.
c) It is open to the State Government to interpret the G.R. of 2007 and/or make their stand clear to the Petitioners or to the Supreme Court in respect of the Fair Price Shops, which distribute kerosene to cardholders without licenses.
d) The kerosene quota of the Petitioners shall not be discontinued till licenses are issued in favour of the SelfHelp Groups as per the order of the Supreme Court dated 10.5.2010, in their villages.
36. The Rule is disposed in terms of this judgment. No costs.
37. Today, Mr. Dhorde, learned Counsel, on behalf of all learned Advocates for the Petitioners in this Group of Petitions, seeks directions to the concerned authorities not to issue licenses in pursuance of the Proclamations issued or to be issued for a period of six (6) weeks from today. He submits that the Petitioners would like to challenge this judgment in the Supreme Court. Mr. Khandare, learned Government Pleader is not in a position to state, how long the concerned authorities will take, to grant licenses after completing the due procedure. Keeping that in view and considering overall facts and circumstances of the case, we are inclined to issue direction as prayed for. Order accordingly. We make it clear that the concerned authorities may continue with the process of selection of kerosene retail dealers in pursuance of the Proclamations issued or to be issued. However, they shall not grant licenses for a period of six (6) weeks from today.
