NANDBODHI MAGASWARGIYA GRAHAK SAHAKARI SANSTHA Vs. LEELABAI

JUDGEMENT

(1.) This Civil Revision Application is filed, challenging the Judgment and Order dated 22th December, 2005 passed by the learned Civil Judge, Senior Division, Aurangabad Dist. Aurangabad below Exh. 30 in Regular Civil Suit No. 653 of 2005. The petitioner herein is the original defendant No. 5 and respondent No. 1 is original plaintiff in Regular civil Suit No. 653 of 2005. The respondent Nos. 2 to 4 are original defendant Nos. 2 to 4 in the said suit.

(2.) The plaintiff filed the suit with following prayer : "A] The Suit of the plaintiff may kindly be decreed with costs. B] That, the defendants be restrained from discontinuing the business carried by the plaintiff of fair price shop NO. 73 without following due procedure under by issuing the perpetual injunction and declare the orders dated 6/09/2005, 8/09/2005 and 22/08/2005 passed by the defendant Nos. 1 to 4 back and behind without hearing the plaintiff as null and void. " In the said Regular Civil Suit petitioner herein filed application under Section 9-A of Civil Procedure Code, and prayed for framing issue of jurisdiction under Section 59-A of Civil Procedure Code and it be tried first. The original plaintiff filed say on the said application stating that the application is misconceived. The remedy available under the Act will operate as a bar to the Jurisdiction of the Civil Court, therefore, this application is not tenable. The learned Civil Judge, Senior Division, Aurangabad by his order dated 19th October, 2005 granted application and framed the preliminary issue thus : " Whether this Court has jurisdiction to try the suit in view of Maharashtra Scheduled Commodities (Regulations & Distribution) Order 1975 - The said application filed by the petitioner herein was exhibited at Exh. 30. The learned Civil Judge, Senior Division, Aurangabad by his order dated 22th December, 2005 held that there is no express bar under Maharashtra Scheduled Commodities (Regulations & Distribution) Order 1975, to oust the jurisdiction of Civil Court. Being aggrieved by the said order dated 22th December, 2005, this Civil Revision Application is filed by the original defendant No. 1.

(3.) The learned counsel appearing for the revision petitioner submitted that licence bearing No. 73, in respect of fair price shop and kerosene is given in favour of petitioner society and petitioner society is running the same in the Aurangabad city. In the year 1982, the petitioner society went in liquidation and administrator was appointed by the Assistant Registrar Co-operative Societies, Aurangabad, and the shop Nos. 73,77 and 78 were given to the employees of the petitioner society for running the same. Shop No. 73 was run by the husband of the respondent No. 1, namely Sukhdeo Palaskar who was the salesman of the petitioner society. In 2003, the petitioner society came up from liquidation. The application was filed with the authorities for handing over the fair price shop Nos. 73,77 & 78 to the society, as it was earlier run by the petitioner society.On 16th August, 2003, the husband of the respondent No. 1, running the fair price shop No. 73, expired. On 7th November, 2003, the District Supply Officer, Aurangabad rejected the application of the petitioner for handing over the said shops No. 73,77 & 78 in favour of the petitioner society. Being aggrieved, petitioner society filed revision before the State Government, challenging the letter dated 7th November, 2003 issued by the District Supply Officer, Aurangabad. The Minister, Food, Civil Supplies Department, Mantralaya, Mumbai, on 18th August, 2004 allowed the said revision filed by the petitioner society, thereby directing to allot the shops No. 73,77 & 78 to the petitioner society. It is the case of the petitioner that on 04th February, 2005, the respondent No. 1, one of the two wives of said Shri Sukhdeo Palaskar made application to District Supply Officer, Aurangabad to give her licence of shop No. 73 being legal heir of Sukhdeo Palaskar. On 27th August, 2005, the District Supply Officer, Aurangabad issued letter to the Distribution Officer to take action on the application given by respondent No. 1 on 9th June, 2005. The District Supply Officer, Aurangabad, refused to allot the kerosene quota to the petitioner society, and therefore, the revision was filed before the State Government by the petitioner. Though the order dated 18th August, 2004, was passed by the State Government giving shops No. 73, 77 & 78 to the petitioner society, but as the quota of kerosene was not allotted the petitioner society approached to the State Government by filing revision and same was heard by State Government on 14th July, 2005 and same was reserved for orders. According to the Counsel for the petitioner, the Distribution Officer who had no authority to take decision for allotting the shop, issued notice of hearing to the respondent No. 1, directing to remain present on 28th July, 2005. The Distribution Officer without any authority in law and without any powers and without taking permission of the higher authorities, issued a letter in favour of respondent No. 1, directing to run the said fair price shop No. 73 of which the licence was with the petitioner society. On 18th August, 2005, the superior authority of the Distribution Officer, the Additional Collector issued letter to the Distribution Officer, Aurangabad, that he had no powers to issue letter dated 2nd August, 2005 in favour of respondent No. 1. The learned Counsel further submitted that on 22th August, 2005, the revision filed by the petitioner society came to be allowed, thereby directing to allot the kerosene quota in favour of the petitioner society. On 6th September, 2005, the District Supply Officer, Aurangabad immediately in view of the letter issued by the Additional Collector stopped the supply of the essential commodities to the respondent No. 1. On 8th September, 2005 the District Supply Officer issued letter to the Distribution Officer referring the orders dated 18th August, 2004 and 22th August, 2005 passed by the State Government and directed to issue allocation in favour of the petitioner society. The respondent No. 1 who is original plaintiff filed Regular Civil Suit No. 635 of 2005 before Civil Judge, Senior Division, Aurangabad for perpetual injunction against shop No. 73 and declaration challenging the letters dated 6th September, 2005, 8th September, 2005 and order dated 22th August, 2005 which are mentioned here-in-above. The petitioner filed application Exh. 30 for framing preliminary issue of Jurisdiction under Section 9-A of Civil Procedure Code. The Civil Court held that Court has jurisdiction to entertain the suit, and there is no express bar in the Maharashtra Scheduled Commodities (Regulations & Distribution) Order 1975.