Allahabad High Court
Ram Prakash vs State Of U.P. And 4 Others on 30 May, 2017
Bench: Ran Vijai Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 38
Case :- WRIT - C No. - 29863 of 2016
Petitioner :- Ram Prakash
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Ajay Singh Sengar
Counsel for Respondent :- C.S.C.
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Hon'ble Ran Vijai Singh, J.
Heard Sri Indra Raj Singh along with Sri Shashi Prakash Singh, Sri Ajay Singh Sengar, Sri S.K.Shukla, Sri Ashwani Kumar Mishra, Sri A.P.Singh, Sri Awadhesh Kumar Srivastava, Sri Mohd.
Akram Ah. Rothey, Sri D. K. Srivastava, Sri S. N. Yadav, Sri Krishna Kant Singh, Sri Indra Raj Singh Yadav, Sri Pardeep Singh Sengar, Sri Ashok Kumar Tiwari, Sri Akhilesh Prasasd Tripathi, Sri Akhilesh Kumar Singh, Sri Suresh Narain Pandey, Sri Shailendra Singh, learned counsel for the petitioners, Sri Vishal Tandon, Sri Shamim Ahmad, Sri Vinod Kumar Sahu and Sri J.S.Upadhyay, learned Standing Counsel for the State respondents and learned counsel appearing for the concerned gaon sabhas.
In the aforesaid writ petitions, prayers have been made for issuing a writ of certiorari quashing the orders of appointment of fair price shop agents in respective gaon sabha.
Learned Standing Counsel as well as counsel for the gaon sabha have raised a preliminary objection with regard to maintainability of the writ petition. In their submissions, orders impugned in the respective writ petitions are appealable under Para 11 of the government order dated 3.7.1990 and appeal would lie before the Divisional Commissioner. Whereas the learned counsel for the petitioners have submitted that the government order dated 3.7.1990 has been repealed/superceded, therefore no appeal would lie.
However, in absence of supporting material, adjournment was sought. Taking note of that, on 6.7.2016, following order was passed in writ petition no. 29863 of 2016.
Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the order dated 3.3.2015 passed by the Sub Divisional Officer, Madhogarh, Jalaun appointing the respondent no. 5 as fair price shop agent.
Learned standing counsel has submitted that there is an alternative remedy of appeal under para 11 of the Government Order dated 3.7.1990; whereas learned counsel for the petitioner submits that the Government Order dated 3.7.1990 has been superseded and he may be granted some time to prepare the case.
On the request of learned counsel for the petitioner, put up this case on 14.7.2016 as fresh.
Thereafter the case was taken up on number of dates and on 1.8.2016, following order was passed :-
Number of writ petitions have been filed against the order of appointment of fair price shop agent, which have been clubbed together. Arguments have been advanced by the learned counsel for the petitioners that after commencement of U.P. Scheduled Commodities Distribution Order, 2004 (hereinafter referred to Distribution Order, 2004) under Order 28(3) remedy of appeal has been provided to the fair price shop agent only against an order of suspension and cancellation of fair price shop agreement.
From the bare reading of of Order 4 of the Distribution Order, 2004 it transpires that 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. Sub Order (c) of Order 2 of the Distribution Order, 2004 talks about 'Agent' which means, a person or a cooperative society or a corporation of the State Government, authorised to run a fair price shop under the provisions of this order. How and in what manner fair price shop agent will be appointed, the procedure has not been prescribed under this Distribution Order, 2004 and only running of a fair price shop has been prescribed under Order 4 of the Distribution Order, 2004, according to which it is Collector, who will decide the procedure on the directions of the State Government.
Learned standing counsel is directed to get personal affidavit of the Principal Secretary/ Secretary Food and Civil Supplies, U.P. Lucknow as to what is the procedure prescribed for the appointment of the fair price shop agent after commencement of Distribution Order, 2004 and is there any remedy to challenge the illegal appointment may be due to procedural lapse or otherwise or the order of appointment of fair price shop agent becomes final even if it is illegal.
Put up this case as fresh on 22nd August, 2016. By that time necessary affidavit may be filed.
Taking note of the queries of the Court, Sri Sudhir Garg, Principal Secretary, Food and Civil Supplies, Government of U.P., Lucknow has filed his personal affidavit. For the purposes of the case, the averments made in paragraphs 8, 9, 10 and 11 of the affidavit of the Principal Secretary are relevant which are reproduced herein under :-
8. That, during the course of arguments as has been carried out on the previous occasions,the Hon'ble Court has been pleased to raise certain queries which are as under :-
Query No. 1. Whether the Government Order dated 3.7.1990 issued under the U.P.Scheduled Commodities Distribution Order, 1990 still occupies the field so far as it is not inconsistent with subsequent Government Orders/Distribution Order,2004?
9. That, in reply to the aforesaid, it is submitted that the Government Order dated 3.7.1990 is still in existence in so far as it is not inconsistent with the subsequent Governmnet Orders and Distribution Order, 2004.
Query No. 2. Whether the appeal as provided under clause 11 of the Government Order dated 3.7.1990 against the appointment of fair price shop is still available even after issuance of U.P.Scheduled Commodities Distributuion Order, 2004 or not?
10. That in reply to the aforesaid, it is submitted that even after promulgation of the U.P.Scheduled Commodities Distribution Order,2004, the provision of appeal as provided under clause 11 of the Government Order dated 3.7.1990 is still available.
Query No. 3. Whether in pursuance of Order 4 of U.P.Scheduled Commodities Distribution Order, 2004 any fresh procedure has been formulated for appointment of fair price shop agent or not or the procedure as prescribed in the Government Order dated 3.7.1990 is still prevalent.
11. That, in reply to the aforesaid, it is submitted that no fresh procedure has been formulated for appointment of fair price shop agent in pursuance of Order 4 of the U.P.Scheduled Commodities Distribution Order, 2004. It is further submitted that the procedure as prescribed in the Government Order dated 3.7.1990 is still prevalent in so far as it is not inconsistent with the Government Order dated 17.8.2002. The aforesaid condition has been duly mentioned under cluase 4 of the Government Order dated 17.8.2002. Clause 4 (3) of the Government Order dated 17.8.2002 specifically provides that the conditions of the Government Order dated 3.7.1990 shall also be effective in so far as they are not inconsistent with the Government Order dated 17.8.2002 and in case of any inconsistency, the provisions of the Government Order dated 17.8.2002 shall prevail.
Learned counsel for the petitioners have not filed any objection to the affidavit filed by the Principal Secretary. However, the submissions of learned counsel for the petitioners are almost identical. In their submissions, U.P. Scheduled
Commodities Distribution Order,1990 (hereinafter referred to as ''Distribution Order, 1990'), under which the government order dated 3.7.1990 was issued, stood repealed after commencement of U.P. Scheduled Commodities Distribution Order, 2004 (in short 'Distribution Order, 2004), therefore the government order dated 3.7.1990 also came to an end after commencement of the Distribution Order, 2004. In their submissions, there is a specific provision for appeal under Order 28 of the Distribution Order, 2004 and in view of the Order 28 of the Distribution Order, appeal can only be filed by an agent against an order of suspension or cancellation of the agreement of the fair price shop agent. Under Sub-Order 2 of Order 28 of the Distribution Order, 2004, right of appeal has been given to the cardholders, whose ration cards have either been cancelled or the Food Officer has refused to renew the ration cards. In their submissions, since under Order 28 of the Distribution Order 2004, there is no provision for appeal against an order of appointment of fair price shop agent, therefore appeal would not lie and the argument advanced by learned counsel for the respondents regarding availability of alternative remedy is misconceived. In support of their submissions, reliance has been placed upon the judgment of this Court in Chandra Bhan Prasad Gupta rendered in Writ Petition No. 1642 of 2009 decided on 10.12.2010. The relevant para of the aforesaid jdugment is reproduced hereinunder :-
On the parameter of the provision quoted and noted above, and on the basis of the provision, specially provision as contained in clause 30 and 31 of Uttar Pradesh Scheduled Commodities Distribution Order, 2004 and keeping in view of provision of sub-section (3) of Section 4 of Uttar Pradesh Scheduled Commodities Distribution Order, 2004 are being adverted to.
This is accepted position that in the present case for fresh allotment of the shop, proceedings in questions were initiated, prior to enforcement of Uttar Pradesh Scheduled Commodities Distribution Order, 2004 as resolution had already been passed for allotment of another shop. After the said resolution had been passed, District Magistrate had given report that there was no requirement of any additional shop and thereafter, appeal was
preferred against the same and said appeal was allowed and the matter was required to be inquired afresh in respect of existence of the number of unit entered in respective of Gaon Panchayat Rampur Baldiha. In terms of clause 30 of Uttar Pradesh Scheduled Commodities Distribution Order, 2004 any act performed under the provisions of the Uttar Pradesh Scheduled Commodities Distribution Order, 1990, which has been repealed prior to commencement of this order has to deemed to have been validly performed under the provisions of this 2004 order. Resolution has been passed and said resolution has been accepted to be valid in terms of 2004 order, but at no point of time any shop had been allotted prior to 20.12.2004 and when Uttar Pradesh Scheduled Commodities Distribution Order, 2004 had been enforced, treating the said resolution as valid further follow up action has been taken. The appeal in question certainly would have been maintainable in case shop in question was allotted prior to 20.12.2004, as till the said period in term of Government Order dated 3.7.1990 appeal was maintainable before the Commissioner of the concern division. The legislature has consciously at the point of time of repealing earlier provision has not provided and conferred right of appeal against the order of appointment of agent for running fair price shop agency. Clause 31 of Uttar Pradesh Scheduled Commodities Distribution Order, 2004 clearly provides that provisions of 2004 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.
The reliance has also been placed upon another judgment of this Court in Dilip Kumar Vs. State of U.P. and others (Writ-C No. 5691 of 2009, decided on 24.4.2015).
Learned Standing Counsel as well as counsel for the gaon sabha have submitted that there is no automatic repeal of the government order dated 3.7.1990 after repeal of the Distribution Order, 1990. In their submissions, in view of Clause 24 of General Clauses Act 1897, unless the government order issued under the Distribution Order, 1990 is specifically repealed the aforesaid government order shall remain in force. In support of their submissions, reliance has been placed upon the Division Bench judgment of this Court in Ram Murat etc.etc. Vs. Commissioner Azamgarh Division, 2006 (5) ADJ 396. Learned Standing
Counsel, taking shelter of the Full bench judgment of this Court in Indra Pal Vs. State of U.P. And others, 2014 (2) AWC 1455, submitted that the Full bench also considered this aspect of the matter as to whether after repeal of Distribution Order, 1990, the government order dated 3.7.1990 stood repealed or it is still in force. The Full Bench in Indra Pal (supra) (vide paras 39 and 42) has observed as under :-
39 Once the State Government who otherwise is empowered to issue Government Order controlling the subject of way and manner in which fair price shop dealer is to be appointed and the fair price shops are to be run and the State Government in its wisdom has proceeded to pose restriction and disqualification on an incumbent and his family members as defined in Paragraph 4.7 from being appointed as agent on Pradhan/Up-pradhan being there or being elected subsequently as Pradhan or Up-pradhan, then in said context the provision of U.P. Scheduled Commodities Distribution Order, 2004, containing the definition of household cannot be pressed into the services as by virtue of the provision of Section 24 of the U.P. General Clauses Act, 1904, the aforementioned Government Orders dated 3rd July, 1990 and 18th June, 2002 stands saved and are operating with full force as no inconsistent provision has been re-enacted. Relevant extract of Section 24 reads as follows;
"24. Constitution of appointments, notifications, orders etc. issued under enactments repealed and re-enacted:- Where any enactment is repealed and re-enacted by an (Uttar Pradesh) Act, with or without modification, then, unless it is otherwise expressly provided, any appointment, (or statutory instrument or form) made or issued under the repealed enactment shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, (or statutory instrument or form) made or issued under the provisions so re-enacted."
42 On the provisions as contained under Section 24 of the U.P. General Clauses Act, 1904, it is clearly manifested that the Government Order, which has been so issued on 3rd July, 1990 and 18th June, 2002, covers the field of appointment and that of disqualification and once the said Government Order is in force and therein family has been defined in a different context altogether by mentioning who are the specific family members who are disqualified along with others i.e. who can also be treated alternatively as family member i.e. who are dining with the family, then looking into the area and the field of operation of the two, it
could not be said that there is any conflict in between the definition of household or in the definition of family. The suggestion that has come forward on behalf of petitioner that after enforcement of Control Order of 2004, the definition of family as provided in Government Order dated 3rd July, 1990, is effaced and superseded, cannot be accepted on contextual interpretation of provisions.
In the submission of learned Standing Counsel, the Full Bench has also came to the conclusion that the government order dated 3.7.1990 is still in force so far as it is not in inconsistent with the Distribution Order, 2004. In support of his submissions, reliance has been placed upon the judgment of this Court in Daya Ram Patel Vs. State of U.P. And others (Writ-C No. 7862 of 2016, decided on 22.2.2016), where this Court has observed as under :-
Pursuant thereto, the petitioner, herein has filed appeal before the Divisional Commissioner, which has been dismissed holding it to be not maintainable under Sub Clause (3) of Clause 28 of the Order,2004 on the ground that under Clause 28 only fair price shop agent can prefer the appeal and the petitioner is not fair price shop agent but while doing so, the order passed by this Court dated 24.6.2015, has not been taken into consideration by the Divisional Commissioner, by which the petitioner was relegated to avail remedy of appeal on the strength of condition no. 11 given in the government order dated 3.7.1990 which is the backbone for the purpose of allotment/suspension/cancellation of the fair price
shops. The government order dated 3.7.1990 has although been modified from time to time but this condition is remained intact. The item no. 11 of the aforesaid government order is reproduced hereinunder :-
11 ftykf/kdkjh }okjk nqdku fu;[email protected] [email protected]@uohuhdj.k u djsus laca/kh ikfjr vkns'k ds fo:) vihy lacaf/kr e.Myk;qDr ds le{k izLrqr dh tk,xh A bu ekeyksa esa f}rh; vihy dh O;oLFkk ugha gksxhA
From the perusal of the aforesaid condition, it is apparent that any person aggrieved by the appointment of fair price shop agent can prefer appeal under item no. 11 of the government order dated 3.7.1990. The U.P. Scheduled Commodities Distribution Order, 2004 under which appeal was filed operates in different fields. It does not talk about the manner and procedure under which the fair price shop agent is appointed. The functioning of the Control Order starts only after the appointment of fair price shop agent. The fair price shop agents are being appointed pursuant to
the government order dated 3.7.1990 issued under Section 3 of U.P. Essential Commodities Act,1955 under which the State government has power to issue such orders as may be fit for such purpose. It may be noticed that under Clause 28 of U.P. Scheduled Commodities Distribution Order, 2004, the Divisional Commissioner/Additional Commissioner to whom power is delegated happens to be appellate authority and under item no. 11 of the Government order dated 3.7.1990, referred herein above, too the Divisional Commissioner happens to be appellate authority, therefore the power of adjudication of appeal either against an order appointing fair price shop agent under Government order dated 3.7.1990 or an order passed suspending/cancelling the agreement of the fair price shop agent, the Commissioner happens to be competent authority to adjudicate upon the appeals. In this backdrop, it has to be examined that when the authority is vested with the power to adjudicate upon the matter and somebody approaches the authority for redressal of his grievance either against the appointment or against the order of cancellation/suspension of agreement of fair price shop agent whether that person can be non-suited on account of the fact that he has approached the appellate authority by quoting the wrong provisions.
Reliance has also been placed upon another judgment reported in 2007 (4) ADJ 321, Shesh Nath vs. State of U.P. And others.
Sri A.P.Singh, learned counsel appearing in writ petition no. 37326 of 2016 submitted that the Distribution Order, 2004 talks only about distribution part and it does not talk about the appointment of fair price shop agent, therefore also the availability of remedy of appeal etc. has to be looked into in context with the procedure of appointment of fair price shop agent. In his submissions, the Distribution Order, 2004 operates in different fields after appointment of the fair price shop agent and it regulates the distribution part and in the event of failure of the distribution or illegality in the same, penal provisions have also been made in the Distribution Order, 2004.
I have heard learned counsel for the parties and perused the record.
Before proceeding any further, I find it appropriate to quote
few provisions of the Distribution Order, 2004.
2 (c) "Agent" means a person or a co-operative society or a Corporation of the State Government authorised to run a fair price shop under the provisions of this order;
(f) "Appellate Authority" means any authority appointed by the State Government to exercise the powers of the appellate authoirty under this order;
(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;
(l)" Fair Price Shop" means a shop set up under these orders of the State Government for the distribution of Scheduled Commodities;
(n) "Holder" in relation to ration card, means the person whose name or designation appears as such on that ration card;
(p) "Ration card" means a card issued under Clause 5 of this order;
4. Running of fair price shop - (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.
28 (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) Any person aggrieved by an order of the Food Officer or the designated authority refusing the issue or renewal of a ration card or cancellation of the ration card may appeal to the appellate authority within thirty days from the date of receipt of the order.
(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.
(4) No such appeal shall be disposed of unless the aggieved person or agent has been given a reasonable opportunity of being heard.
(5) Pending the disposal of an appeal the Appellate Authority may direct that the order under appeal shall not take effect untill the appeal is disposed of.]
From the perusal of the Order 4 of the Distribution Order, 2004 it transpires that a fair price shop agent shall be run through such person and in such manner as the Collector, subject to the direction of the State government may decide.
The Sub-Order 2 of Order 4 of the Distribution Order, 2004 provides that a person appointed to run a fair price shop under Sub-Clause (1) shall act as an agent of the State government.
The definition of word agent has been given in Order 2 (c) of the Distribution Order, 2004, which means a person or a co-operative society or a corporation of the State Government authorised to run a fair price shop under the provisions of this order.
As has been mentioned hereinabove the Distribution Order, 2004 has come into force after repeal of the Distribution Order, 1990. The Distribution Order 2004 is almost paramateria of Order 4 of the Distribution Order, 1990.
4. Running of fair price shop - (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 order.
During the course of the agrument, the Court has desired to know as to whether after commencement of the Distribution Order, 2004 taking note of the Order 4 of the Distribution Order, 2004, the State government has issued any government order/circular dealing with the procedure of appointment of fair price shop agent. The response of the same has been given in paragraph 11 of the counter affidavit.
From the persual of paragraph 11 of the counter affidavit, it transpires that the government order dated 3.7.1990 is still holding the field to the extent which is not inconsistent with the government order dated 17.8.2002, meaning thereby, after commencement of the Distribution Order, 2004, the government has not prescribed any procedure for appointment of fair price shop agent and the initial government order dated 3.7.1990,
modified to some extent on 17.8.2002, is still holding the field. The paragraph 11 of the government order dated 3.7.1990 provides that appeal would lie against an order of appointment/suspension/cancellation of the agreement to run fair price shop as has been noted herein above.
Nothing has been brought to my notice regarding the change of para 11 of the government order dated 3.7.1990, in the government order dated 17.8.2002 and according to the stand of the State government, these are the only two government orders which talks about the procedure of appointment of fair price shop agent and the remedy to challenge the same, if any appointment of fair price shop agent, is illegal.
Learned counsel for the petitioners have submitted before this Court that U.P. Scheduled Commodities Distribution Order,1990 (in short 'Distribution Order, 1990) under which the government order dated 3.7.1990 was issued stood repealed after commencement of U.P. Scheduled Commodities Distribution Order, 2004.
In response thereto, learned Standing Counsel submitted, as noted hereinabove, that in view of Clause 24 of General Clauses Act, there would be no automatic repeal of the government order dated 3.7.1990 as while repealing the Distribution Order, 1990, the government order dated 3.7.1990 has not been repealed. In the submission of learned Standing Counsel, since there is no specific mention in the repeal clause regarding repeal of government order dated 3.7.1990, therefore it will still hold the field. In support of his submissions, he has placed reliance upon the Division Bench judgment of this Court rendered in Ram Murat (supra) wherein, this Court, considering this aspect of the matter whether the government order dated 3.7.1990 is still in force or it stood repealed after commencemnet of the Distribution Order, 2004 observed as under :-
After careful consideration of the submissions made by both
the parties, we are of the view that the Gram Pradhan still plays an important role in allotment of fair price shops in the village. The recommendations are still taken from Gram Sabha to decide as to whom ration shop should be allotted. The aforesaid G.O. of 1990 prohibiting allotment of ration shops to Pradhans, Up-Pradhans and their family members was issued with the object that Pradhan and Up-Pradhan may not obtain any undue benefit for themselves and their family members by making recommendations for allotment of ration shop to them and with the same object the new G.O. was issued in the year 2002 that if a ration shop dealer or his any family member is elected as Pradhan or Up-Pradhan ,licence for running the shop granted in his favour or in favour of his relation shall be cancelled. The aforesaid two G.Os. which were issued to achieve this object have got no repugnancy with the provisions of the Control Order of the year 2004 and they are still in force in view of section 24 of the U.P. General Clauses Act.
Sri G.K.Pandey, learned counsel for the petitioner submitted that the government order dated 3.7.1990 has been declared ultravires by the Division Bench of this Court in the case of Zila Panchayat Ghaziabad Vs. State of U.P. And others, (2003) 2 UPLBEC 1538.
In response to the argument advanced by Sri Pandey regarding the declaration of the government order dated 3.7.1990 ultra vires, learned Standing Counsel submitted that the judgment of Division Bench of this Court in Zila Panchayat Ghaziabad has been set aside by the Hon'ble Apex Court in Civil Appeal No. 8137 of 2003 (State of U.P. And another Vs. Zila Parishad Ghaziabad and another) on 1.2.2013. In the submissions of learned counsel for the respondents, the government order dated 3.7.1990 is still in force to the extent to which the provisions contained under government order dated 3.7.1990 are not inconsistent with the government order dated 17.8.2002.
Learned counsel for the petitioners, taking shelter of the judgment of this Court in Chandra Bhan Prasad Gupta (supra) have submitted that the appeal against an order of appointment of a fair price shop agent would not be maintainable as the
government order dated 3.7.1990 is inconsistent with the provisions contained under the Distribution Order, 2004. In their submissions, under Order 28 of the Distribution Order, 2004, the remedy of the appeal is only provided against an order of cancellation/suspension of the fair price shop agent, and the refusal/renewal of the ration card or its cancellation. In their submissions, since, no provision for appeal against an order of appointment is provided under Order 28 of the Distribution Order, 2004, therefore the appeal would not lie. Reliance has also been placed upon the judgment of this Court in Dilip Kumar Vs. State of U.P. and others (Writ-C No. 5691 of 2009, decided on 24.4.2015).
In the counter affidavit of the State government, the stand has been taken that the provisions of the government order dated 3.7.1990 which are not inconsistent with the government order dated 17.8.2002 are still in force. So far as the availability of the appeal against an order of appointment of fair price shop agent is concerned, it is only provided in Para 11 of the government order dated 3.7.1990. In this regard, nothing has been mentioned in government order dated 17.8.2002, therefore there is no inconsistency with that.
In response to the queries made by the Court as to whether, after taking note of the Order 4 of the Distribution Order, 2004, any government order/circular has been issued dealing with the procedure of appointment of fair price shop agent. In this regard too, the stand of the State government is that the government order dated 3.7.1990 and 17.8.2002 are still holding the field as under Order 4 of the Distribution Order, 2004, no fresh government order has been issued dealing with the procedure prescribed for appointment of fair price shop agent.
In the submissions of learned Standing Counsel, the government order dated 3.7.1990 is still holding the field. So far as the Para 11 of the government order dated 3.7.1990 is
concerned, leraned Standing Counsel has also contended that there would be no automatic repeal of the government order dated 3.7.1990 unless in repeal clause, i.e. Clause XXX of the Distribution Order, 2004, there is any mention about the repeal of the government order dated 3.7.1990 which has been issued under Order 4 of the Distribution Order, 1990. The contention of learned Standing Counsel is fully supported with the Division Bench judgment of this Court in the case of Ram Murat (supra).
Learned Standing Counsel has also placed reliance upon the Division Bench judgment of this Court in Dayaram Patel Vs. State of U.P. And others (Writ-C No. 35542 of 2015, decided on 24.6.2015) wherein the Division Bench of this Court has dismissed the writ petition challenging the order of appointment of fair price shop agent on the ground that the petitioner had remedy under Clause 11 of the government order dated 3.7.1990. In addition to that, it has also been submitted that while rendering the judgment of the Full Bench of this Court in Indra Pal (supra), the Full Bench opined that the government order dated 3.7.1990 is still in force.
It has also been brought to my notice that while repealing all the earlier Distribution Orders, Uttar Pradesh Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016 has come into force and there under Sub-Clause 1 of Clause 13 of the Distribution Order, 2016, the remedy of appeal has been provided against an order of appointment, suspension and cancellation of the fair price shop.
In view of foregoing discussions and the law laid down by the Division Bench of this Court in Ram Murat (supra) and the Full Bench in Indra Pal (supra) holding that the government order dated 3.7.1990, which is not inconsistent with the government order dated 17.8.2002, shall remain in force, since para 11 of the government order dated 3.7.1990 is not inconsistent with the government order dated 17.8.2002,
I am of the considered opinion, appeal would lie against the order of appointment of the fair price shop agent.
The writ petitions are disposed of with the liberty to the petitioners to avail remedy of appeal before the Divisional Commissioner. In case, such appeals are filed within three weeks from the date of receipt of certified copy of this order, the same shall be decided on merit, without entertaining any objection to the limitation, after hearing all concerned in accordance with law expeditiously, if possible, within a period of four months from the date of filing of the appeal.
Order Date :- 30.5.2017
Pratima
