BRIJ KOD Vs. COMMISSIONER OF FOOD AND SUPPLIES

JUDGEMENT

(1.) The learned counsel for the respondents 1 to 3 raises a preliminary objection that the appropriate remedy for the petitioner is to file an appeal before the Financial Commissioner and not come to this Court under Article 226 of the Constitution. The learned counsel for respondent NO.3, however, very fairly stated that there is no Financial Commissioner who is functioning in Delhi today. In this view of the matter the preliminary objection losses it efficacy as it is the respondent No.3 who is to appoint the Financial Commissioner. The respondent No.3 cannot on the one hand decline to perform the duty to appoint the Financial Commissioner and on the other hand take up the plea that an alternate plea is available. In this view of the matter this plea of maintainability is rejected. Pleadings are complete.

(2.) Rule. Heard the learned counsel for the parties. The petitioner had been an applicant for the allotment of a kerosene oil depot (hereinafter referred to as 'KOD') pursuant to applications invited in November 1999 by respondents 1 to 3. Out of 16 original applicants 5 including the petitioner were approved and referred to the Board by the Screening Committee on 5/5/2000. The Selection Board however found, respondent No.4, Rajiv Kumar of Pankaj KOD to be more suitable than the other applicants including the petitioner. On 5/5/2000 the respondent No.2, the Assistant Commissioner, Food & Civil Supplies, passed an order granting licence to Rajiv Kumar of M/s Pankaj KOD and refused to grant the license to the other 4 applicants. The said order was carried on in the appeal to the Commissioner. Food & Supplies but by the impugned order dated 23/6/2000 he disposed of the appeal of the petitioner. The relevant portion of the order dated 23/6/2000 reads as under:

(3.) The above order is challenged by the petitioner, M/s Brij KOD, on the ground that in the above order the Commissioner has not considered the case of petitioner as set out in appeal and has merely granted an additional licence to Shiv KOD in addition to that granted to M/s Pankaj KOD. There is merit in the plea of the petitioner as the order does not appear to give any reason for declining the appeal of the petitioner and on the contrary grants the additional licence to M/s Shiv KOD. learned counsel for the respondents 1 to 3 has contended that Section 8(4) of the Delhi Kerosene Oil (Export & Price.) Control Order 1962, which reads as under: 8(4) The Commissioner Food and Supply, Delhi may after giving the parties to the appeal an opportunity of being heard, confirm, vary or set aside the order appeal from or pass such other order as he may deem fit. permits the Commissioner to vary the impugned order and consequently the phrase "vary" also include the power to issue one more licence.