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Madhya Pradesh High Court

Janta Prathmik Upbhokta Sahkari ... vs The State Of Madhya Pradesh on 5 January, 2024

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

                              1               W.P.No.25356/2019



     IN THE HIGH COURT OF MADHYA PRADESH
                 AT JABALPUR
                          BEFORE
      HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                ON THE 5th OF JANUARY, 2024
                 WRIT PETITION No. 25356 of 2019

BETWEEN:-
1.   JANTA     PRATHMIK
     UPBHOKTA SAHKARI
     BHANDAAR PARASIYA
     THR MANAGER AJIT
     KUMAR DUBEY S/O
     SHRI N.K. DUBEY A/A
     R/O. WARD NO. 8,
     NEAR SHIVAM HOTEL
     PARASIYA       TEH.
     PARASIYA, DISTRICT
     CHHINDWARA
     (MADHYA PRADESH)
2.   HARIOM      MAHILA
     BAHUUDDESHIYE
     UPBHOKTA SAHKARI
     BHANDAAR PAGARA
     DISTT.CHHINDWARA
     THROUGH MANAGER
     KAMLESH
     VISHWAKARMA    S/O
     RAMNATH
     VISHWAKARMA AGE
     49 VILLAGE PAGRA
     TAH.PARASIYA
     DISTT.CHHINDWARA
     (MADHYA PRADESH)
3.   KALRI KARAMCHARI
     PRATHMIK
     UPBHOKTA SAHKARI
     BHANDAAR AMBADA
     THROUGH MANAGER
     VINOD
     VISHWAKARMA  S/O
     MANGALPRASAD
                             2                W.P.No.25356/2019



     VISHWAKARMA AGE
     38 WARD NO. 10
     BADKUHI
     TAH.PARASIYA,
     DISTRICT
     CHHINDWARA
     (MADHYA PRADESH)
4.   SULAB     PRATHMIK
     UPBHOKTA SAHKARI
     BHANDAAR
     CHANDAMETA
     DISTT.CHHINDWARA
     THROUGH MANAGER
     SMT.USHA     BATHRI
     W/O      PREMDAYAL
     BATHRI AGE 48 WARD
     NO.   1   GOURUKHI
     TOLA CHANDAMETA
     TAH.PARASIYA,
     DISTRICT
     CHHINDWARA
     (MADHYA PRADESH)
                                              .....PETITIONER
(BY SHRI KISHORE SHRIVASTAVA SENIOR ADVOCATE WITH SHRI ANKUR
SHRIVASTAVA-ADVOCATE AND ANAND NAYAK - ADVOCATE)

AND
1.   THE    STATE    OF
     MADHYA    PRADESH
     THR      PRINCIPAL
     SECRETARY
     COOPERATIVE DEPT.
     VALLABH   BHAWAN,
     BHOPAL    (MADHYA
     PRADESH)
2.   COLLECTOR
     CHHINDWARA
     DISTT.CHHINDWARA
     (MADHYA PRADESH)
3.   SUB      DIVISIONAL
     OFFICER            /
     DISTRITUTION
     CHHINDWARA
                                       3                   W.P.No.25356/2019



     DISTT.CHHINDWARA
     (MADHYA PRADESH)
4.   PARASNATH
     SURYAWANSHI     S/O
     GANESH      PRASAD
     SURYAWANSHI
     OCCUPATION:
     PRESIDENT COLLIERY
     KARAMCHARI
     SAHKARI UPBHOKTA
     BHANDAR    IKLAHRA
     TAH.PARASIYA,
     DISTRICT
     CHHINDWARA
     (MADHYA PRADESH)
                                                        .....RESPONDENTS

(RESPONDENT NO. 1 TO 3/STATE BY SMT. SWATI ASEEM GEORGE - DEPUTY
GOVERNMENT ADVOCATE AND RESPONDENT NO.4 BY SHRI PUSHPENDRA
YADAV- ADVOCATE)

      This petition coming on for admission this day, the court passed the
following:
                                ORDER

This petition under Article 226 of Constitution of India has been filed seeking following relief(s):-

"(i) Hon'ble Court may kindly be pleased quash the order Annexure P-1 & P-2 passed by the respondent no.2 & 3.

(ii) And further be pleased to allot the shop in favour of the petitioners.

(iii) Any other writ/order/direction which this Hon'ble Court deems fit in the facts and circumstances of the case may kindly be issued."

2. It is the case of petitioners that earlier the fair price shop in question was allotted to respondent No.4, however the allotment of the fair price shop of the respondent No.4 was cancelled in the year 2006 and he was 4 W.P.No.25356/2019 prosecuted under Section 3/7 of Prevention of Corruption Act. The respondent No.4 was acquitted by judgment dated 25.01.2014. It is submitted by counsel for petitioners that against the original order of cancellation, the respondent No.4 had preferred a writ petition, which was withdrawn by him with liberty to make a representation, however, representation was rejected. The appeal against the said order was also dismissed, which is the subject matter of W.P.No.19724/2016, which is still pending. After the acquittal of respondent No.4, he applied for allotment of fair price shop, which was rejected by the SDO, Parasiya, District Chhindwara by order dated 28.12.2015.

3. Being aggrieved by the said order, the respondent No.4 Colliery KarmchariUpbhoktaSahkariBhandarMaryadit filed W.P.No.10383/2016, which was disposed of by order dated 08.07.2016 with a direction to the UpbhoktaBhandar to challenge the order dated 28.12.2015 passed by SDO, Parasiya, District Chhindwara in appeal.

4. The respondent No.4 by suppressing the earlier order, again applied for allotment of shop vide Annexure P/8 and the SDO, Parasiya, District Chhindwara by order dated 25.07.2019 amended the order dated 29.08.2005, by which the cancellation of license to run fair price shop was amended/modified and the fair price shop in question was allotted to the respondent No.4. Thereafter the petitioners preferred W.P.No.17992/2019 and by order dated 30.08.2019, the petitioner was directed to file an appeal before the respondent No.2. However, by the impugned order, the appeal filed by the petitioner has been dismissed and accordingly present petition has been filed.

5. It is submitted by counsel for petitioner that order dated 24.07.2005 by which the allotment of fair price shop made in favour of respondent society was cancelled could not have been reviewed by SDO, Parasiya, District Chhindwaraand in absence of any power of review, therefore, the impugned order is bad in law. Furthermore, the prayer for re-allotment was not made by the society. The SDO, Parasiya, District Chhindwara should not have entertained the application filed by the respondent No.4.

6. Per contra, it is submitted by counsel for respondent No.4 that since the order of allotment of fair price shop is an administrative order, therefore the order can be reviewed at any point of time and no statutory provision is required for the same. Furthermore, the respondent No.4 had applied for a fresh allotment and in fact the order in question is a fresh allotment of fair price shop and thus it cannot be questioned by the petitioner.

7. Heard the learned counsel for the parties.

8. By the impugned order dated 25.07.2019, the SDO, Parasiya, District Chhindwara has specifically mentioned that by "amending the order dated 29.08.2005, the fair price shop is allotted to the respondent No.4 for its operation". If it was a fresh allotment, then there was no question of making any reference to the previous orders. Furthermore, in the order dated 25.07.2019, it was specifically mentioned that by amending the order of cancelation dated 29.08.2005, the fair price shops in question is allotted to the respondent No.4. Thus, on the face of this order, it cannot be held that it is an order of fresh allotment. However, the submission made by counsel for respondent No.4 that in fact this order is an order of fresh allotment shall also be considered at a later part of this order.

So far as the availability of power to review the order dated 29.08.2005 is concerned, it is the stand of respondent No.4 that since this order is administrative in nature, therefore it can be reviewed or modified at any stage.

9. Considered the submissions made by counsel for the parties.

10. The fair price shop is allotted under the Public Distribution System(Control) Order, 2015, therefore it cannot be said that the allotment of a fair price shop is in exercise of administrative work but in fact it is in exercise of quasi judicial work.

11. Under these circumstances, an authority cannot review its own order unless and until the provisions provide for the same. Power of review is a statutory power and it cannot be exercised by an authority unless and until it is vested with such power. Therefore, it is held that order dated 25.07.2019 is bad in law because it has been passed without there being any power of review with the competent authority.

12. So far as the submission that in fact the order dated 25.07.2019 is a fresh allotment order is concern, the same is misconceived.

13. As per Clause-8 of M.P. Public Distribution System (Control), Order 2015, the procedure for allotment of fair price shop has been prescribed which reads as under:-

"8. Allotment of Fair Price shops-

(1) Fair Price Shop Allotment Authority shall not allot fair price shops to anyone except societies/groups mentioned in schedule -II:

Provided that, Fair price shops shall not be allotted by the competent authority to any such society/group which has been found guilty of violating clause 13 of this order:

Provided further that fair price shop may be allotted to such society/group in case guilty office bearers have been removed from such society/ group.

2) A fair price shop shall be allotted for three years. Successive renewal for three years may be made on satisfactory working of the shop.

(3) Eligible Institutions, interested in operation of fair price shop shall apply to the Fair Price shop allotment authority prescribed in Form-A. (4) No institution shall be eligible for allotment of a fair price shop beyond its operation area.

(5) Whenever received the applications from more than one eligible institution, for a fair price shop; The Fair Price Shop Allotment Authority shall subject to para 8 select the institution by lot following a transparent process.

(6) Fair Price Shop allotment Authority Letter shall be issued by Fair Price Shop Allotment Authority prescribed in Form-B. (7) The amount of security deposit shall be Rs. 5000/- per shop in both urban and rural areas.

(8) When an application for amendment in entries made in Fair Price Shop Allotment Authority Letter, the Fair Price Shop Allotment Authority, after enquiry, as it deems fit, shall make changes in the register and the authority letter accordingly.

(9) A cooperative society/institution shall not be allotted more than one fair price shop in any urban area.

(10) Applicant society/institution desirous of getting fair price shop allotted must have an amount/credit limit sufficient to lift one month of allotment of commodities.

(11) Applicant society/institution must have sufficient space available for storage and distribution of commodities equivalent to one month's allotment.

14. It is admitted by counsel for respondent that before making an allotment of fair price shop, the SDO (Revenue), Parasiya, District Chhindwara had not issued any general advertisement inviting applications from the other eligible societies. However, it is submitted that in Clause - 8 of the M.P. Public Distribution System (Control), Order 2015, it is nowhere mentioned that advertisement is required to be issued for inviting applications from eligible societies and thus the fair price shop can be allotted by the SDO without giving an opportunity to participate to the other eligible societies.

15. Considered the submissions made by counsel for petitioner.

16. It is true that in Clause-8 of M.P. Public Distribution System (Control) Order 2015, no provision has been made for issuing an advertisement thereby calling the applications from the eligible and interested societies but Clause-8(5) clearly makes out that whenever applications are received from more than one eligible institution for fair price shop, then the authority shall select the institution by lot following a transparent process. Thus it is clear that for a single fair price shop, multiple institutions/societies can apply. Unless and until each society/institution is made known about the allotment of license to run fair price shop, there cannot be a transparent process.

17. Furthermore, the counsel for petitioner could not point out any provision of law by which the fundamental rights of the institutes/persons enshrined under Article 19 of Constitution of India can be taken away. Dealing with food grains cannot be said to be a privilege like trade in liquor. Therefore the requirement of issuance advertisement thereby inviting applications from all the eligible institutions/societies is inbuilt in Clause-8 of M.P. Public Distribution System (Control), order 2015. Admittedly, in the present case, no advertisement was issued and the impugned order was passed merely on an application filed by respondent No.4 who is not an institute in itself.

18. Accordingly, this Court is of the considered opinion that the impugned order dated 25.07.2019 passed SDO, Parasiya, District Chhindwara is bad in law on account of fact that it was passed without any jurisdiction as the SDO, Parasiya, District Chhindwara does not have any jurisdiction to review the order and secondly if it is treated to be a fresh allotment, then the same was violative of Article 19 of Constitution of India.

19. Accordingly, the order dated 25.07.2019 passed by SDO, Parasiya, District Chhindwara and order dated 18.11.2019 passed by Collector, Chhindwara in Appeal No.101/Appeal/ 2019-20 are hereby set aside. Now the next question for consideration is as to whether this Court should issue further directions or not ?

20. By order dated 05.12.2019, the operation of orders dated 25.07.2019 and 18.11.2019 were stayed and thus it is submitted by counsel for petitioner that the petitioner is still running the fair price shop in question. It is admitted by the counsel for petitioner that the fair price shop 10 W.P.No.25356/2019 in question was allotted to the petitioner by way of stopgap arrangement on account of cancellation of the license of respondent No.4 to run the fair price shop.

21. Thus, it is clear that the petitioner was never allotted the fair price shop in question but it was merely a time gap arrangement and under these circumstances, the petitioner cannot be allowed to run the fair price shop for indefinite period like regular allotee.

22. Under these circumstances, the respondents are directed to initiate proceedings for allotment of fair price shop in accordance with provisions of Clause-8 of standing Order, 2015.

23. Necessary advertisement be issued latest by 20.02.2024 thereby inviting the applications from the interested aspirants. The entire process be completed latest by 20.04.2024 and the fair price shop be allotted to eligible institution/society on regular basis.

Till 20.04.2024, the petitioner shall continue to run the fair price shop as a stop gap arrangement.

24. At this stage, it is submitted by counsel for petitioner that nobody knows as to whether the petitioner is still running the shop as a stopgap arrangement or the petitioner has also been regularly allotted the shop. Accordingly, it is made clear that if the regular allotment of the shop in question has already been made in favour of the petitioners, then the aforementioned observations/directions would automatically stand recalled. However, if it is found that no regular allotment in favour of petitioner has been made and the petitioner is still running the shop as a time gap arrangement, then the process for allotment of fair price shop on 11 W.P.No.25356/2019 regular basis be completed by 20.04.2024 and the petitioner shall not be eligible to run the fair price shop beyond the said period.

25. With aforesaid observation, the petition is finally disposed of.

(G.S. AHLUWALIA) JUDGE VB* VINAY KUMAR BURMAN 2024.01.23 12:39:24 +05'30'