Madhya Pradesh High Court
Jasvant Singh vs The State Of Madhya Pradesh on 30 July, 2015
WP-19300-2013
(JASVANT SINGH Vs THE STATE OF MADHYA PRADESH)
30-07-2015
Shri Deependra Mishra, learned counsel for the
petitioner.
Shri A.K.Singh, learned counsel for respondents no.1 to
3. Shri D.K.Tripathi, learned counsel for respondent no.4. With consent of parties, the matter is finally heard. Order dated 7.10.2013 passed by the Collector Chattarpur in an appeal preferred by respondent no.4 under Clause 12 of the Madhya Pradesh Public Distribution System (Control) Order 2009; whereby, an order of allotment of Fair Price Shop at Pachhwara, Tehsil Gaurihar has been set aside.
Petitioner Society, as borne out from record, in pursuance to its application was allotted subject fair price shop. It is contended that due procedure prescribed in Control Order 2009 was followed before allotment. This allotment came to be challenged by respondent no.4 before this Court vide writ petition No.7648/2013 , which was not entertained on the ground of alternative remedy available and was disposed of on 30.4.2013.
Respondent no.4 thereafter preferred an appeal under Clause 12 of Control Order 2009 on 29.4.2013. That Sub Clause 3 of Clause 12 of Control Order 2009 provides for that if any person aggrieved by the decision of Licensing Authority under the Sub Clause (8) of Clause 11, he may appeal to the Commissioner Food Civil Supplies and Consumer Protection within a period of 30 days.
Apparently an appeal filed by respondent no.4 on 29.4.2013 against order dated 6.3.2013 was beyond 30 days.
The Appellate Authority ignoring this fact went on to entertain the appeal on merit and by impugned order dated 7.10.2013 set aside order dated 6.3.2013. Grievance raised by the petitioner against the impugned order is that it is beyond jurisdiction of Appellate Authority to have entertained the Appeal after expiry of 30 days. It is further contended that even no leave was granted to respondent no.4 in W.P.No.7648/2013.
Reliance is placed on decision in Noharlal Verma V. District Cooperative Central Bank Limited, Jagdalpur :
(2008) 14 SC 445.
Learned counsel appearing for respondent no.4 though have contradicted the submissions put forth on behalf of the petitioner; however, he does not dispute the fact that against order dated 6.3.2013 Appeal under Section 12 of Control Order 2009 was filed on 29.4.2013.It is also not disputed by learned counsel for respondent no.4 that Sub Clause (3) of Clause 12 stipulates a period of limitation of 30 days within which the Appeal has to be preferred .
Considered the rival submissions.
Apparently the Appeal in question was filed beyond 30 days from the date of order.
Clause 12 of Control Order 2009 envisages:
12. Appeal.-(1) Any person/society aggrieved by the order of the Shop Allotment Officer may file an appeal against the same, within 30 days before the appellate authority and decision by the appellate authority shall be final:
Provided that the appellate authority shall not pass any order without hearing the aggrieved person/society and giving him an opportunity to be heard.
2. The appellate authority, if satisfied by reasons to be recorded in writing ] may stay the order of the lower authority till the final order on the appeal has been passed.
(3) If any person aggrieved by a decision of the licensing authority under sub-clause (8) of clause 11, he may appeal to the Commissioner, Food, Civil Supplies and Consumer Protection within a period of 30 days.
Sub Clause (3) of Clause 12 thus prescribe the period of limitation of 30 days for filing an appeal, no provisions has been commended at in 2009 Act as would empower the Appellate Authority to condone the delay suomotu or an application.
Since no discretion is vested in an Appellate Authority to entertain any time barred appeal the petitioner is justified in his stand that Appellate Authority can act upon its jurisdiction in entertaining a time barred appeal.
In this context reference can be had of a decision in Noharlal Verma (Supra) wherein dwelling upon some what similar provision as Sub Clause (3) of Clause 12, it was held by their Lordships:
32. Now, limitation goes to the root of the matter. If a suit, appeal or application is barred by limitation, a Court or an Adjudicating Authority has no jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on merits.
34. As stated earlier, Section 55 allows an aggrieved party to approach the Registrar within a period of thirty days. There is no provision analogous to Section 5 of the Limitation act, 1963 allowing the Registrar to condone delay if "sufficient cause" is shown. In view of this fact, in our opinion, the contention of the learned counsel for the Bank is well founded that the application submitted by the appellant was barred by time.
35. To us, the High Court was right in observing that the Tribunal was in error in allowing the appeal and dismissing the claim of the appellant on the ground of res judicata. The High Court, therefore, considered the said question independently and held that the Bank was right in submitting that the appellant had not approached the Registrar within the period prescribed by law and his application was liable to be dismissed.
Present case when is tested on the anvil of law laid down Noharlal Verma (supra) the impugned order cannot be given the stamp of approval as the same has been passed by the Appellate Authority in usurpation of jurisdiction.
Needless to say while setting aside order dated 7.10.2013, order dated 6.3.2013 is restored. In the result petition is allowed to the extent above. There shall be no costs.
(SANJAY YADAV) JUDGE