Madhya Pradesh High Court
Gramin Mahila Bahuudeshiya Sah. ... vs The State Of Madhya Pradesh on 6 May, 2010
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGHLE BENCH : HON'BLE SHRI JUSTICE P.K.JAISWAL
WRIT PETITION NO.18998 OF 2006
Gramin Mahila Bahuudeshiya
Sahkarita Samiti Maryadit
Vs.
State of M.P. & others
Shri Shashank Shekhar, Advocate for the petitioner.
Shri Sudhir K. Shrivastava, Govt. Advocate for
respondents.
ORDER
(06/05/2010) Challenge in this writ petition under Article 226/227 of the Constitution of India is to an order dated 13/12/2006. By order dated 13/12/2006, the fair price shop allotted to the petitioner-society at Bihra No.1, Block Rampur Baghelan, Distt. Satna vide order dated 16/17-12-1999 was cancelled by respondent No.3-Collector.
2. The facts briefly stated are that the petitioner-society was granted and accorded sanction to open the fair price shop at Birha No.1, Distt. Satna and the same was allotted to the petitioner on 16/12/1999.
3. Respondent No.1 formulated a scheme known as M.P. (Food Product) Public Distribution Scheme, 1991 (in short 'the scheme of 1991'). This scheme was formulated in consonance with M.P. Food Stuff (Distribution) Control Order, 1960 and Part-IV of the same. Clause-III of the Scheme stipulates that number of fair price shop and their location shall be decided by the Collectors of the State. Clause-III further details that any consumer attached to any fair price shop shall not have to walk more than 5 Kms. Section 4((1) and 4(2) deals with the appointment of fair price shops and it only details that the fair price shops shall only be allotted to Co-operative societies. The petitioner-society is a society run and managed by women.
4. On 10/2/2006 wheat was seized by the police in tractor bearing registration No.M.P.1919/H/2395 and allegation was made that the said 2 W.P. NO.18998 Of 2006 wheat having total quantum of 31 bags, i.e. 3100 Kgs belong to the petitioner society. A detailed enquiry was conducted by the Food Officer, who after the enquiry found that wheat seized by the police did not belong to the petitioner-society. Relevant part of enquiry dated 3/2/2006 reads as under :
"xzkeh.A efgyk cgqmnns'Ah; lgdkjh lfefr fcgjk dza0 1 dh tkWp djus ij laxzfgr xsgwa dk fodz; i'pkr HakSfrd lR;kiu djus ij dsoy 60 fdyksa dh xsgWw de ik;k x;k ftldk izek.A rS;kj fd;k x;k gS A vr% idMs x;s 30 cksjk xsgwa ds laca/A esa leLr lacaf/A;ksa esa iwNrkN djus ij rFAk mfpr ewY; ds nqdku ds nLrkostksa dk eq[; ijh{A.A i'pkr mDr xsgaw lkoZtfud forj.A dh iz.Akyh dk gksuk ugha ik;k x;k A izfrosnu dk;Zokgh gsrq A"
5. The respondent No.3-Collector, Satna, ordered an enquiry by the SDM of the area to conduct a detailed enquiry into the matter. Respondent No.4, then conducted the enquiry into the allegation and the report dated 27/3/2006 was submitted by him wherein the SDM, came to a conclusion that stock in the shop was found to be complete and it could not be said that the wheat so seized belonged to the petitioner-society. Relevant part of the finding of the SDM dated 27/3/2006 (Annexure-P/5) :
" tkWp ds fuIdiZ dfu"B vkiwfrZ vf/Adkjh lruk }kjk Hah 31 cksjs xsgwW ds laca/A esa tkWp dh xbZ tkWp izfrosnu esa mUgksu mfYyf[Ar fd;k fd dksVsnkj }kjk ewy lwph la/Akfjr ugha dh xbZ gS fodzsrk lsYleSu }kjk jk'AudkMZ jftLVj ugha cuk;k x;k feVVh dk rsy 10&00 :0 yhVj fn;k tkrk gS ch-ih- ,y- dkMZ/Akfj;ksa dks xYyk ugha fn;k x;k A LFAy tkWp ds le; O;adVs'A izlkn ru; dk'Ahizlkn fuoklh fVdqjh ds dFAu esa rFAk VsDVj MkbZoj gfjn'AZu flag ds dFAu esa fHAUurk ikbZ tkrh gS O;adVs'A izlkn u crk;k fd fnukad 10&2&06 djs lqcg 6&7 cts xsgwa VsDVj esa yknk x;k gS VsDVj ds 3 W.P. NO.18998 Of 2006 lkFA dksbZ ugha x;k gS gfjn'AZu flag ftldk VsDVj gS ftl VsDVj esa xsgwW ynk Fakk mlesa Lor% fnukad 9&2&06 dks xsgwW yknuk Lohdkj fd;k gS rFAk 10&2&06 dks lqcg 6-00 cts HAS;k yky flag dh nqdku esa [Amk djus dh ckr dgh xbZ gS HAS;kyky flga us Hah vius dFAu esa gfjn'AZu flga dh dgh ckrks dh iqfIV dh xbZ gS ehjk vkfnoklh us 10&2&06 dks xsgwW yknuk Lohdkj fd;k gS izR;{An'khZ jkef/Ajkt flag }kjk crk;k x;k fd dksV dk [A?AkUu vkus ij lSYleSu }kjk 15 cksjh xYyk vius vgjh esa j[Ak tkrk gS egsUnz dqekj ik.Ms; us vius dFAu esa crk;k fd dksVsckj dh vgjh esa dwgWw yn jgk Fkk eSus Lo;a ns[Ak dysDVj egksn; dks lwpuk nh xbZ ;g Hakh crk;k VsDVj dksVsckj }kjk gh pyk;k tk jgk Fsk A Jh O;adVs'A izlkn ds ikl dqy 13-79 ,dM Hawfe gS lkFA gh nqdku dk Lvkd Hah dEIyhV gS blfy;s ;g iw.AZ :i ls ugha dgk tk ldrk fd xsgWw nqdku dk gS O;adVs'A izlkn }kjk fnukad 10&2&06 dks xYyk yknuk crk;k x;k gS fdUrqVsDVj gfjn'AZu flag dk gS mlus 9&2&06 dks yknuk Lohdkj fd;k gS O;adVs'A ds dFAu ,oa VsDVj MkbZoj ds dFAu esa fHAUurk gS bl izdkj VsDVj MkbZoj ds 'AiFAir ,oa dFAu esa fHAUurk gS ftlls lansg fufeZr gksrk gS VsDVj dkSu pyk jgk Fak bl ij Hkh c;ku esa fHAUurk gS lsYleSu vius cpko esa vius rFAk O;aDVs'A frokjh rFAk vPNsyky ds 'AiFAir is'A fd;k gS ftlls iw.AZ:is.A lR; ugha dgk tk ldrk vkSj u gh xyr dgk tk ldrk A bl izdkj lsYleSu dh Hakwfedk lafnX/A izrhr gksrh gS A tkWp izfrosnu vko';d dk;Zokgh gsrq ekuuh; ftyk/;{A egksn; dh vksj ewy uLrh lfgr lEizsfir gS A"
6. Thereafter by letter dated 12/4/2006 respondent No.3-Collector asked SDM to supply a clear report to the effect that whether or not wheat seized, belonged to the fair price shop. Respondent No.4-SDM in response thereto forwarded a letter dated 2/5/2006 and the SDM in this letter stated that the wheat does not belong to the fair price shop as the stock was found 4 W.P. NO.18998 Of 2006 complete in the enquiry conducted by him. Relevant part of the letter dated 2/5/2006 (Annexure-P/6) of SDM reads as under :
"di;k mijksDr foi;kaxZr 'Akldh; mfpr ewY; nqdkj fcgjk dza 1 ds lac/A esa tkWp dh x;h tkWp es ik;k x;k fd 'Akldh;
mfpr ewY; dh nqdku esa xsgWw dk Lvkd lgh ik;k x;k A 'Akdh; mfpr ewY; dh nqdku dk xsgwW ugha gS A"
7. Thereafter a show cause notice dated 15/5/2006 was issued by the Collector levelled an allegation that on 11/2/2006 a surprise check was undertaken by the officers of the Food Department and they found that stock and price list was not displayed, ration card book was not prepared, kerosene oil was sold at a higher rate i.e. Rs.10/- per litre whereas the rate of kerosene is Rs.9.22 per liter and there was shortage in stock of wheat. The show cause notice was issued to the effect that there was a breach of conditions of the Scheme of 1991 and also breach of conditions 6(3), 10(1) and 12. It is also alleged that there was breach of clause 8(g), 11(d) and 14 of the agreement and the said breaches are punishable under Section 3(7) of the Essential Commodities Act, 1955 and why the fair price shop allotted to the petitioner be not terminated.
8. The petitioner immediately after receipt of show cause notice filed reply to the effect that he had not committed any breach of any condition either of the agreement or of scheme of 1991. The petitioner-society also raised an objection (Annexure-P/8) that the Collector had no authority to initiate the proceedings as he was not the disciplinary authority as per clause-13 of the Scheme of 1991 and was in fact appellate authority. Thereafter no further proceeding took place nor the society was called, neither the witnesses were examined before the Collector nor the society was afforded the opportunity to cross-examine the witnesses. Respondent No.3-Collector passed the order impugned and cancelled the fair price shop 5 W.P. NO.18998 Of 2006 allotted to the petitioner-society at Bihra,District Satna. It is this action which is impugned in this writ petition.
9. Learned counsel for the petitioner submits that the Collector has no authority to passed the cancellation order. In support of the said contention he placed reliance on the decision in the case Ram Swaroop Yadav Vs. State of M.P., (1991) 2 MPWN Note 202. He further submits that respondent No.3-Collector has given a complete go-by to the Scheme of 1991 and despite being appellate authority as per Clause-14, has acted as original authority as per Clause-18 of the Scheme of 1991. The impugned order has snatched a right of appeal which is substantive right of the petitioner.
10. Per contra, learned Govt. Advocate supports the order dated 13/12/2006. He submits that on 10/2/2006 a tractor bearing registration No. M.P.1919/H/2395 along with trolly loaded with 31 bags of wheat was standing near Bihra Raod at Stana. The same was seized and was given into the custody of Town Inspector, Police Station, Kolgawan. On enquiry it was found that the Food grain loaded in the tractor was allocated to the shop of the petitioner-society. Thereafter the shop was inspected and in view of the irregularities in the shop it was found that there was gross violation of Section 6(3), 10(1) and 12 as also the violation of conditions of agreement 8D, 11A and 14. Therefore, it was recommended to initiate action under Section 3/7 of the Essential Commodities Act, 1955. Learned Govt. Advocate drew my attention to Section 6-A, 6-B and 6-C of the Essential Commodities Act, 1955 and submitted that under the said provisions the Collector empower to adjudicate the matter in case of any essential commodity is seized and has to be confiscated. The proceedings was initiated by respondent No.3 under the provisions of Scheme of 1991 and under the provisions of Section 6-A and 6-B of Essential Commodities Act and, therefore, the impugned order has been passed by the Collector. 6 W.P. NO.18998 Of 2006 During the course of arguments learned Govt. Advocate very fairly stated that no notice under the provisions of Essential Commodities Act, 1955 has been issued to the petitioner nor any confiscation order of confiscating the wheat seized on 13/12/2006 was passed nor the tractor bearing registration No. M.P.1919/H/2395 was confiscated. In view of the above, it cannot be said that in absence of proceedings or record that any proceeding under Section 6-A and 6-B of Essential Commodities Act, 1955 were initiated, the stand taken by the respondents in their return that action has been initiated under Section 6-A and 6-B of Essential Commodities Act, 1955 cannot be accepted.
11. I have heard learned counsel for the parties and perused the record of the case.
12. In Ram Swaroop Yadav Vs. State of M.P. (supra), it was held as under :
"When counsel for the petitioners opened the arguments in this petition, one of the grounds taken was that the order has been passed by the Collector and is, therefore, without authority, since the Collector is only an Appellate Authority and the order to terminate the dealership under the S.D.O., as the case may be. We have perused the order impugned. We find that the order terminating the petitioners dealership in respect of the fair price shop has in fact been passed by the Collector. This is borne out by the endorsement appearing at the end of the impugned order (Anenxure-G-2). The endorsement reads : "dysDVj }kjk vknsf'Ar". A reading of this endorsement makes it manifest that it is the Collector who has passed the orsder terminating the petitioners dealership and the Food Officer has only issued a formal order and communicated the same to the petitioners. This circumstances makes it clear to us that the order has in fact been passed by the Collector. The Scheme envisages that it is only the Food Officer or the S.D.O.as the case may be, who is entitled to pass order in respect of authority. Thus, in the present cae, it is the Appellate Authority, who has exercised the jurisdiction and not the original authority, namely the Food Officer. Obviously for this reason, the order is without jurisdiction and cannot be sustained. We accordingly allow this petition and quash the impugned order (Annexure 7 W.P. NO.18998 Of 2006 6-2)".
13. The scheme of 1991 is a self-contained code. All the authorities are bound by the provisions of the Scheme. They have to act within the four corners thereof. Any such interference on the part of any authority upon whom the scheme does not confer any jurisdiction is wholly arbitrary.
14. It is not the case of the respondents that in an appeal preferred by the petitioner, against cancellation that, the Collector passed the order. In that case it would have been withing his competence to set aside the order of allotment. Since the Collector was not exercising the appellate jurisdiction, it was beyond his powers to have cancel the allotment of the shops in favour of the petitioner. Thus, while holding that it is within the powers of the Sub Divisional Officer/Food Controller/Food Officer to cancel the allotment of the shops as per the provisions of the Scheme of 1991, in the case at hand the cancellation being by and at the instance of Collector, the same being contrary to the provisions under Scheme of 1991 is hereby quashed with liberty to the Sub Divisional Officer/Food Controller/Food Officer to take appropriate steps under Clause-13 of the Scheme of 1991 and in case if it is found that the petitioner-society violated any term of the conditions of agreement/provisions of the Scheme of 1991, they are at liberty to pass an appropriate order in accordance with law after giving opportunity of hearing to the petitioner.
15. With the aforesaid, this petition is allowed but no order as to cost.
(P.K.JAISWAL) JUDGE