Allahabad High Court
Yasveer Singh vs State Of U.P. And Others on 15 May, 2013
Bench: Ashok Bhushan, Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on22/4/2013.
Delivered on 15/5/2013.
Case :- WRIT - C No. - 59637 of 2011
Petitioner :- Yasveer Singh
Respondent :- State Of U.P. And Others
Petitioner Counsel :- V.P. Gupta
Respondent Counsel :- C.S.C.,Rakesh Kumar Shukla
Hon'ble Ashok Bhushan,J.
Hon'ble Surya Prakash Kesarwani,J.
(Delivered by Hon'ble Ashok Bhushan,J)
We have heard Shri V.P. Gupta, learned counsel for the petitioner, Shri Rakesh Kumar Shukla for the respondent no.4 and the learned Standing Counsel for the State respondents.
Counter and rejoinder affidavits have been exchanged and with the consent of the parties, the writ petition is being finally decided.
Brief facts of the case as emerge from the pleadings of the parties are:The petitioner, Yasveer Singh is running a fair price shop since 1993. A letter dated 10/6/2010 was issued by the Sub Divisional Officer to all the Block Development Officers of Tehsil Sambhal directing the Block Development Officers to obtain a resolution in the open meeting of Gram Panchayat regarding the fair price shop dealer in event the members of the Gram Panchayat are not satisfied with the work of the fair price shop dealer. A resolution dated 22/9/2011, was passed by the Gram Panchayat which was passed against the petitioner and in the same resolution it was resolved that one Smt. Shiksha Devi be appointed as a fair price shop dealer. The said resolution was forwarded by the Block Development Officer to the Sub Divisional Officer by letter dated 30/9/2011. The petitioner, aggrieved by the letter dated 10/6/2010 and resolution dated 22/9/2011 has come up in the writ petition praying for the following reliefs:
"(I) Issue a writ order or direction in the nature of certiorari quashing the impugned order dated 10.06.2010 passed by respondent no.2 and proposal dated 22.09.2011 passed by Village Panchayat Chitwali, Block and Tehsil-Sambhal, District-Moradabad (Annexure No.5 and 6 to the writ petition).
(II) Issue a writ order or direction in the nature of mandamus directing the respondent no.2 to supply the essential commodities to the petitioner without any obstruction.
(III) Issue any other writ order or direction in favour of the petitioner, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
(IV) To award the cost of the present writ petition to the petitioner."
The respondent no.4 has filed a detailed counter affidavit. Copy of the resolution dated 02/9/2011 has been filed in the counter affidavit as Annexure CA-4 in which a decision was taken by the Gram Panchayat to convene a meeting for deciding as to whether the petitioner be allowed to continue as fair price shop dealer or he be removed. In the said resolution 22/9/2011 was the date fixed. It has been further stated in the counter affidavit that several complaints were submitted to the Sub Divisional Officer regarding the irregularities committed by the petitioner in distribution of foodgrains. Copy of one of the complaint dated 16/3/2011, has been filed along with the counter affidavit. A report dated 27/8/2011, submitted by the Assistant Revenue Officer regarding the complaint against the petitioner has also been brought on the record. It has been stated in the counter affidavit that by resolution dated 22/9/2011, the respondent no.4 has been appointed as a fair price shop dealer which resolution has been forwarded to the Sub Divisional Officer.
Learned counsel for the petitioner challenging the resolution of the Gram Panchayat dated 22/9/2011 as well as the order of the Sub Divisional Officer dated 10/6/2010 submitted that jurisdiction to suspend or cancel the fair price shop vests with the competent authority who is the Collector/Sub Divisional Magistrate. It is submitted that the Gaon Sabha has no jurisdiction to pass a resolution for removal of a fair price shop dealer. It is submitted that the petitioner's fair price shop agreement being in continuance, there was no jurisdiction in the Gram Panchayat to appoint the respondent no.4 as a fair price shop dealer. The resolution dated 22/9/2011, appointing the respondent no.4 as a fair price shop dealer is wholly arbitrary and against the provisions of the relevant Government Orders issued from time to time. It is submitted by the learned counsel for the petitioner that the State Government has issued a detailed Government Order dated 29/7/2004, laying down the procedure for cancellation/suspension of the fair price shop agreement, but in the said Government Order there is no mention of suspension/cancellation of fair price shop agreement by resolution of the Gram Panchayat.
Learned counsel for the respondent no.4 refuting the submissions of the learned counter for the petitioner contended that the Gaon Sabha has jurisdiction to pass a resolution removing a fair price shop dealer. He has placed reliance on the Government Order dated 03/7/1990 paragraph 4.4. He submits that the Government Order dated 03/7/1990, is still continuing which cloths the Gram Panchayat to pass a resolution removing the fair price dealer and thereafter to appoint the fair price shop dealer.
We have considered the submissions of the learned counsel for the parties and have perused the record.
The main issue which is to be considered in the writ petition is as to whether the Gram Panchayat by its resolution has jurisdiction to remove a fair price shop dealer by suspension/cancellation of the agreement of fair price shop. Learned counsel for the respondents have relied on the Government Order dated 03/7/1990 paragraph 4.4. The said Government Order was issued on the subject of selection of fair price shop dealer in Rural Areas under the Public Distribution System. Paragraphs 4.4 and 7 of the Government Order dated 03/7/1990 which are relevant are quoted below:
"4.4 xkao lHkk dh jk; ls ;g mfpr nj dh nqdkus [kksyh tk;sxh A xkao lHkk dh jk; mldh [kqyh cSBd esa ikfjr izLrko ds ek/;e ls izkIr dh tk,A
7- ;fn fdlh nqdkunkj }kjk vuqlwfpr oLrqvksa ds mBku ;k forj.k esa xMcMh dh tkrh gS rks Loizsj.kk] f'kdk;r ;k xkao lHkk ds izLrko ij ftykf/kdkjh mldh nqdku [email protected] dj ldrs gSaA "
Reliance has been placed by the learned counsel for the petitioner on the Government Order dated 29/7/2004 which was issued on the subject of determination of procedure for suspension/cancellation and attachment of fair price shop dealer in the rural and urban areas. The Government Order dated 03/7/1990 although was issued on the subject of selection of fair price shop dealer in Rural Areas under the Public Distribution System, but the procedure and provisions for suspension/cancellation of the fair price shop agreement was also mentioned therein. However, the Government Order dated 29/7/2004 has been specifically issued on the subject as noted above.
The State of Uttar Pradesh in exercise of power conferred under Section 3 of the Essential Commodities Act, 1955 read with the order of the Government of India,Ministry of Consumer Affairs issued under Section 3 (1) dated 31/8/2001, an order has been issued namely; U. P. Scheduled Commodities Distribution Order, 2004 (hereinafter called the "Order, 2004"). According to Rule 4 of the Order, 2004, a fair price shop shall be run through such person and in such manner as the Collector, subject to the directions of the State Government may decide. According to Rule 21 of the Order, 2004, monitoring of the fair price shop has to be done in accordance with the order issued by the State Government. The "Competent Authority" has been defined in Rule 2(i). Rule 28 of the Order, 2004 provides for an appeal. Provisions of Rule 2(i), 4(i), 21, 28(i) and 31 which are relevant in the present case are as follows:
"2(i) "Competent Authority" means Collector and includes Additional District Magistrate, District Supply Officer, Deputy Town and Rationing Officer and Sub-Divisional Magistrate or Area Rationing Officer.
4. Running of fair price. - (1) A fair price shop shall be run through such person and in such manner as the Collector, subject to the directions of the State Government may decide.
21.Monitoring in accordance with the order issued by the State Government.- (1) A Food Officer shall ensure proper monitoring of fair price shops and prescribe model sale register, stocks register and ration card register in accordance with the order issued by the State Government.
(2) Food Officer shall ensure regular inspection of fair price shop in his area not less than once in a month in urban area and not less than once in a month in rural area by the supply inspector. The State Government may issue order specifying the inspection schedule, list of checkpoints and authority responsible for ensuring compliance of the said order.
(3) (i) Competent authority shall ensure constitution of Vigilance Committees, Administrative Committee (Gram Sabha Level) at fair price shop which shall monitor the functioning of the fair price shop.
(ii) Meeting of such Committees shall be held on regular basis and in a manner as directed by the State Government.
(4) Competent Authority shall ensure a periodic system of reporting and the complete information in this regard shall be sent in the prescribed form as follows:-
(i) By fair price shops to the District Authorities by the 7th of the month following the month for which allocation is made in Form A.
(ii) By the District Authorities to State Government by the 15th of the month following the month for which allocation is made in Form B.
(5) Competent authority shall ensure that Scheduled Commodities are made available to agents in accordance with the roster prescribed by the State Government in this regard.
(6) Monthly allocation of food grains, sugar, kerosene and other Scheduled commodities shall be supplied to the agent only and that only on receipt of a certificate, issued by the concerning Vigilance Committee, Administrative Committee duly countersigned by the supply or Senior Supply Inspector or Village Development Officer of the area clearly mentioning that prior month's allocations have been distributed by the agent in accordance with the rules.
(7) Competent authority shall ensure delivery of one copy of allocation order made to fair price shop simultaneously to Gram Panchayat or Nagar Palika or Nagar Nigam as the case may be and Vigilance Committees or any other body nominated for monitoring the functioning of the fair price shops by the State Government.
(8) Competent authority and Food Officer shall check the diversion, substitution or adulteration of Scheduled Commodities.
28. Appeal.- (1) All appeals shall lie before the Concerned Divisional Commissioner who shall hear and dispose of the same or may by order delegate his/her powers to the Deputy Commissioner, food, or Additional Commissioner for hearing and disposing of the appeal".
(2)............
(3) Any agent aggrieved by an order of the competent authority suspending or cancelling agreement of the fair price shop may appeal to the Appellate Authority within thirty days from the date of receipt of the order.
31. Provisions of the order to prevail over previous orders of State Government - The provisions of this order shall have effect notwithstanding anything to the contrary contained in any order made by the State Government before the commencement of this order except as respects anything done, or omitted to be done thereunder before such commencement.
First we take Rule 31 of the Order, 2004 which provides that the provisions of this order shall have effect notwithstanding anything to the contrary contained in any order made by the State Government before the commencement of this order. The Order, 2004 also empowers the State to regulate running of fair price shops. The orders of the State Government issued prior to Order, 2004 which is contrary to the Order, 2004 stands abrogated. Similarly, the Government Orders issued by the State of U.P. for regulating the fair price shop which is not in consonance with the Order, 2004 or any order issued in exercise of power under the Order, 2004 shall stand abrogated. The Government Order dated 29/7/2004 has been specifically issued on the subject of determination of procedure for suspension/cancellation and attachment of fair price shops in the rural and urban areas. The relevant portion of the Government Order dated 29/7/2004 is quoted below:
"[kk| rFkk jln vuqHkkx &6 y[kuÅ % fnukad 29 tqykbZ] 2004
fo"k;%& xzkeh.k ,oa 'kgjh {ks= dh mfpr nj dh nqdkuksa ds [email protected] ,oa lEc}hdj.k ds lEca/k esa izfdz;k dk fu/kkZj.kA
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mi;qZDr fo"k;d 'kklu ds i= la[;k &[email protected]&6&04&300 [email protected] fnukad 22 vizSy ]2004 dk d`i;k lanHkZ xzg.k djs ftlesa ;g bafxr fd;k x;k Fkk fd 'kklu Lrj ij tuizfrfuf/k;ksa }kjk izk;% bl vk'k; dh f'kdk;r dh tkrh gS fd xzkeh.k ,oa 'kgjh {ks=ksa esa mfpr nj dh nqdkuksa ds lEc/k esa ftyk iz'kklu ds vf/kdkfj;ksa }kjk nqdkuks ds fo:} f'kdk;r izkIr gksrs gh lEcfU/kr mfpr nj dh nqdku ds [email protected] ,oa mlds fdlh vU; nqdku ls lEc}hdj.k dh dk;Zokgh dj nh tkrh gS vkSj bl dk;Zokgh ds djus ds iwoZ vf/kdka'k ekeyks esa dksbZ izkjafHkd tkap vkfn ugh dh tkrh gS rFkk ,d i{kh; :i ls dk;Zokgh dh tkrh gSA ;g izfdz;k uSlkfxZd U;k; ds fl}kUrksa ds iw.kZr% foijhr gS vkSj blfy, tc bl izdkj ds izdj.kksa esa mfpr nj ds nqdkunkjksa }kjk U;k;ky;ksa esa ekeyk ys tk;k tkrk gS rks mUgsa LFkxu vkns'k izkIr gks tkrk gS vkSj vUrksxRok U;k;ky; }kjk muds i{k esa Qslyk ek= bl rduhdh fcUnq ds vk/kkj ij ns fn;k tkrk gS fd fuyEcu dh dk;Zokgh ls iwoZ dksbZ izkjafHkd tkap ugh dh x;h rFkk nqdku ds fujLrhdj.k ds iwoZ lacf/kr mfpr nj ds nqdkunkjksa dks lquok;h dk volj iznku ugha fd;k x;kA vr% lkjh dk;Zokgh izHkkoghu gks tkrh gS D;ksafd bl izdkj dh =qfViw.kZ dk;Zokgh ls tgka ,d vksj dHkh&dHkh fujijk/k mfpr nj ds nqdkunkj ds f[kykQ vuko';d dk;Zokgh gks tkrh gS ogha nwljh vksj okLro esa xMcMh djus okys mfpr nj ds nqdkunkj bl =qfViw.kZ dk;Zokgh dk ykHk mBk ysrs gSA vr% ;g vko';d gS fd mfpr nj nqdkunkj dh nqdku ds [email protected] fujLrhj.k dh dk;Zokgh fof/kd 2 mDr i`"BHkwfe esa eq>s ;g dgus dk funsZ'k gqvk gS fd xzkeh.k ,oa 'kgjh {ks=ksa dh mfpr nj dh nqdkuksa ds [email protected] ds lEca/k esa fuEu izfdz;k dk ikyu fd;k tk,A
(I)mfpr nj dh nqdku dk fuyEcu ek= fdlh O;fDr dh f'kdk;r ds vk/kkj ij ugha fd;k tk,A ;fn fdlh nqdkunkj ds fo:} fdlh Jksr ls f'kdk;r izkIr gksrh gS rks igys mldh izkjafHkd tkap djk;h tk,A ;fn izkjafHkd tkap esa nqdkunkj ds fo:} ,slh xEHkhj vfu;ferrk,a izFke }"V;k fl} gks jgh gks ftuds vk/kkj ij nqdkunkj dh nqdku fujLr gksus dh lEHkkouk gks rHkh nqdku dks fuyafcr fd;k tk, vkSj lkFk gh lkFk nqdkunkj dks dkj.k crkvksa uksfVl tkjh fd;k tk, fd mldh nqdku D;ksa u fujLr dj nh tk,A ;fn izkjafHkd tkap esa ik;k tk, fd vfu;ferrk bruh xEHkhj ugha gS fd nqdku ds fujLrhdj.k dh lEHkkouk gks rks dsoy dkj.k crkvksa uksfVl tkjh fd;k tk,A fuyEcu vkns'[email protected] crkvksa uksfV, ,d "Lihfdax vkMZj" gksuk pkfg, rFkk mlesa izkjafHkd tkap esa ik;h x;h mu lHkh vfu;ferrkvksa dk fooj.k gksuk pkfg, ftudk mRrj nqdkunkj ls visf{kr gksA
(II)(d) [kk| foHkkx ds vf/kdkfj;ksa @ftyk iz'kklu ds vf/kdkfj;[email protected]; izkf/kd`r O;fDr;ksa }kjk mfpr nj dh nqdku ds vkdfLed fujh{k.k ds nkSjku ;fn ik;k tkrk gS fd nqdkunkj }kjk dksbZ xEHkhj vfu;ferrk dh x;h gS rks Hkh nqdku dks fu;qfDr vf/kdkjh }kjk vius foosd dk iz;ksx djrs gq, fuyafcr fd;k tk ldrk gSA
([k) [kk| foHkkx ds vf/kdkfj;ksa @ftyk iz'kklu ds vf/kdkfj;[email protected]; izkf/kd`r O;fDr;ksa }kjk ;fn nqdkunkj dksbZ vfu;fer dk;Z] fooj.k esa xMcMh ;k vuqlwfpr oLrqvks dh dkykcktkjh djrs gq, idMk tkrk gS rks Hkh fu;qfDr vf/kdkjh }kjk vius foosd dk iz;ksx djrs gq, nqdku dks fuyaafcr fd;k tk ldrk gSA
mDr ifjfLFkfr;ksa esa nqdku ds fuyEcu dh fLFkfr esa Hkh "Lihfdax vkMZj" ls fuyEcu vkns'k tkjh fd;k tk;sxk ftlesa lHkh vfu;ferrkvksa dk mYys[k gksxk rFkk nqdkunkj dks dkj.k crkvksa uksfVl tkjh fd;k tk;sxk fd D;ksa u mldh nqdku fujLr dj nh tk,A "
A perusal of the aforesaid Government Order dated 29/7/2004, as quoted above clearly indicates that a detailed procedure regarding the suspension/cancellation of the fair price shop agreement has been contemplated and provided for. The Government Order dated 29/7/2004, in no manner indicates that power has been given to the Gram Panchayat to suspend/cancel the fair price shop agreement by any resolution. The Government Order dated 03/7/1990 paragraphs 4.4 and 7 insofar as it empowers the Gaon Sabha to pass a resolution for suspending/cancelling of fair price shop agreement shall stand overriden by the Government Order dated 29/7/2004.
A Full Bench of this Court in which one of us (Ashok Bhushan,J) was a member had occasion to consider the the Government Order dated 29/7/2004 as well as the Order, 2004 in Puran Singh Vs. State of U.P. & Ors, 2010 (3) ADJ 659. One of the question which was referred to the Full Bench was as to whether before the suspension of fair price shop agreement it was mandatory to give an opportunity of hearing to the fair price shop dealer. Reliance was placed on the Government Order dated 29/7/2004. The Full Bench took into consideration the Order, 2004 and the agreement which was contemplated under Order, 2004 with the agent and the State. Clause 22 of the draft agreement provided for cancellation/suspension of the fair price shop agreement. The said clause was noted in paragraph 23 which is quoted below:
"23.In view of various provisions of the Distribution Order, 2004 a fair price shop license owner is to sign fresh agreement. Clause 22 (1) of the draft agreement is to be quoted here:
22- ¼1½ ;fn vkSj tc dHkh ,rn~ iwoZ mfYyf[kr 'krksZa vkSj izfrcU/kksa
esa ls fdlh dk Hkh vfHkdrkZ }kjk mYya?ku fd;k tk; [email protected]
vuqikyu u fd;k tk; rks l{ke izkf/kdkjh] fyf[kr :i ls Li"Vr% dkj.k
crkrs gq, vfHkdrkZ }kjk tek izfrHkwfr dh jkf'k vius foosdkuqlkj vkaf'kd
vFkok lEiw.kZ :i ls 'kklu ds i{k esa tCr dj ldrk gS vFkok bl
vuqcU/k i= dks fuyfEcr djrs gq, vfHkdrkZ ds fo:ö vxzsrj tkWp ,oa
foHkkxh; dk;Zokgh la;ksftr djkdj izfdz;k esa yk ldrk gS vkSj foHkkxh;
dk;Zokgh dh izfdz;k esa vfHkdrkZ dks mlds fo:˜ lk{;ksa dk voyksdu
djus dk volj iznku djrs gq, vfHkdrkZ dks viuk i{k izLrqr djus dk
volj iznku djrs gq, xq.kkoxq.k ds vk/kkj ij fopkjksijkUr vfHkdrkZ dk
vuqcU/; fujLr rd dj ldrk gS rFkk lEiw.kZ izfrHkwfr jkf'k 'kklu ds
i{k esa tCr dj ldrk gSA ""
Referring to Clause 22 of the draft agreement the Full Bench held that giving opportunity of hearing before suspension of fair price shop is not mandatory. Following was laid down in paragraph 49.
"49.In view of the aforesaid it is clear that in the Government Order dated 29.7.2004 there is no contemplation of any notice and opportunity before suspending the fair price shop, rather there is a clear stipulation that the authority can pass the order of suspension at the time of surprise inspection and otherwise also if complaint of serious irregularity is received. Opportunity will be required only before order of cancellation. This is also clearly provided in the Distribution Order, 2004, the provisions of which has an overriding effect on the Government Order dated 29.7.2004. In terms of the Distribution Order of 2004 parties are to sign draft/agreement with a clear stipulation of the power of the authority to pass the order of suspension."
The Full Bench also noted Clause 31 of the Order, 2004 and held that the Order, 2004 shall have overriding effect.
In view of the above discussions, we are of the view that the provisions of paragraphs 4.4 and 7 of the Government Order dated 03/7/1990, insofar it empowers the Gaon Sabha to pass a resolution for removal of fair price shop dealer does not survive and suspension/cancellation of the fair price shop agreement can be done only in accordance with the Government Order dated 29/7/2004 and Clause 22 of the agreement as noted above.
There is one more reason due to which we are of the view that the power of cancellation/suspension vests only with the competent authority. The Competent Authority has been defined in Rule 2(i) of the Order, 2004. Rule 28 (3) of the Order, 2004, while providing for an appeal to the Appellate Authority within 30 days uses the phrase "Any agent aggrieved by an order of the competent authority suspending or cancelling the agreement of the fair price shop". Thus, the Order, 2004 contemplates suspension/cancellation of the agreement only by the competent authority. This also reinforces our view that the power is not vested in the Gram Panchayat to cancel or suspend the fair price shop agreement. It is further relevant to observe that the competent authority can proceed to take action against the fair price shop dealer only on the basis of any relevant material or information. Proceedings may be initiated on a complaint submitted by any card holder or any public person, or on a report received by the officials of the Food and Civil Supplies Department or other Competent Officers or even suo motu.
The resolution of the Gaon Sabha for taking action against the fair price shop dealer at best can be termed as an information or complaint by the Gaon Sabha against the fair price shop dealer which may form a basis for initiating any action but the resolution itself cannot be treated to be a decision cancelling the fair price shop agreement. If it is held that the Gaon Sabha has authority and jurisdiction to take a decision regarding the cancellation of the fair price shop, the Authorities have only to issue a consequential order without here being any discretion left in the authority. For example, in event there are no genuine complaints against the fair price shop dealer regarding distribution of the food grains but the Gaon Sabha for one reason or the other takes a resolution removing the fair price shop dealer can it be said that the authorities are obliged to pass an order removing the fair price shop dealer, the answer is obviously No, since the authorities have to exercise the power of cancellation on proved allegations against the fair price shop dealer.
There is one more reason for not conceding the power with the Gaon Sabha. After the appointment of fair price shop dealer, the work and conduct of the fair price shop dealer is to be monitored by the State Authorities according to Order, 2004 and various Government Orders issued from time to time. If it is conceded that the Gaon Sabha has power to take a decision regarding the removal of fair price shop dealer, it shall be open for the Gaon Sabha to take up the issue of an on creating uncertainty which may have disastrous effect on distribution of food grains. Resolution may be passed against the fair price shop dealer for his removal on consideration which may not necessarily be only his work and conduct as a fair price shop dealer.
In view of the foregoing discussions, we are of the view that the provisions of the Government Order dated 03/7/1990 paragraphs 4.4 and 7 are no more in operation after the issuance of Government Order dated 29/7/2004 and the Order, 2004. The Gaon Sabha has no jurisdiction to take a decision for removing the fair price shop dealer.
In the result, the resolution of the Gaon Sabha dated 22/9/2011 cannot be sustained and is hereby set-aside. The letter dated 10/6/2010, passed by the Sub Divisional Officer is also set-aside for the same reason. We, however, observe that this order shall not preclude the competent authority from taking any action against the fair price shop dealer if there are complaints regarding the distribution of food grains.
The writ petition is disposed of accordingly.
15/5/2013.
SB
