Present writ petition has been filed questioning the validity of the order dated 24.12.2007 passed by the Sub Divisional Magistrate, Sadar, District Mahrajganj appointing Shiv Pratap son of Jai Shree as fair price shop agent at Gram Panchayat Rampur Baldiha, Ghughuli, District Mahrajganj and order dated 24.9.2008 passed in appeal by the Commissioner, Gorakhpur Division Gorakhpur holding the appeal to be incompetent and not maintainable.
Brief background of the case is that petitioner has been fair price shop agent and claims that said agency in question was allotted to him under Government Order dated 3.7.1990. Petitioner has stated that Shiv Pratap approached the Sub Divisional Magistrate for allotment of the shop at Gram Panchayat Rampur Baldiha and on the said request being made, report was obtained with regard to population of the village and number of Unit. Report was submitted that there was no additional requirement of fair price shop. Petitioner has stated that against the same appeal was filed and said appeal was allowed and matter was remanded back for holding inquiry about number of unit available at Gaon Panchaysat Rampur Baldiha. Petitioner at the said juncture filed Writ Petition No. 23818 of 2007 and said writ petition was dismissed and Sub Divisional Magistrate was asked to hold the inquiry about unit as per direction issued by the Commissioner. Petitioner submitted that thereafter allotment was made in favour of respondent no.4. Against the same he preferred appeal and said appeal has been dismissed as being not maintainable. At this juncture present writ petition has been filed.
Pleadings inter-se parties have been exchanged by filing Counter affidavit on behalf of the respondent nos. 1,2,3 and 4 and to the said counter affidavit statement has been made that petitioner will not file any rejoinder affidavit and thereafter with the consent of the parties, present writ petition has been taken up for final hearing/disposal.
Sri. Manish Singh, Advocate, learned counsel for the petitioner confined his argument only to the effect that proceeding in the present case had been undertaken prior to enforcement of the Uttar Pradesh Scheduled Commodities Distribution Order, 2004, as proceedings in question were governed by the Government Order dated 3.7.1990 and the said Government Order contained the provision of appeal, under paragraph 11 even against the appointment of the fair price shop agent, as such appeal in question ought to have been entertained by treating the same as being legally maintainable and ought to have been decided on merit, and as appellate forum has rejected the appeal as not maintainable, as such writ petition deserves to be allowed by treating the appeal as competent and maintainable and thereafter, appellate forum be directed to decide the same on merit.
Countering the said submission, learned Standing counsel as well as Sri Pradeep Kumar, Advocate on the other hand contended that right to appeal is creation of statute and once agency in question in the present case had been accorded as per provision of Uttar Pradesh Scheduled Commodities Distribution Order, 2004, and against the order appointing agent, appeal is not at all provided for, in such a situation prayer which has been made to hold appeal to be competent and maintainable is unjust claim as appeal on the face of it is incompetent and not maintainable.
After respective arguments has been advanced, statutory provision on which reliance has been placed i.e. provision of Government Order dated 3.7.1990 as well as Uttar Pradesh Scheduled Commodities Distribution Order, 2004 are being looked into.
In the Government dated 3.7.1990 full fledged procedure has been provided for in respect of allotment of fair price shop agency and in respect of renewal. Under paragraph 11 of the Government order, clear cut provision has been provided for that against the order passed by the District Judge in respect of appointment/Suspension/ cancellation/renewal, appeal can be filed before the concern Commissioner of the division and there would be no provision of second appeal. Relevant extract of para no. 11 of the Government Order dated 3.7.1990 is being extracted below:-
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 gksxh A The Parliament enacted the Essential Commodities Act,1955 ( the Act) Section 3 of the Act empowers the Central Government to enact different Control Orders. Section 5 of the Act empowers the Central Government to delegate this power to the State Governments also and the Central Government has accordingly delegated this power to the State Governments. Then the State of U.P. enacted the U.P. Scheduled Commodities (Regulation of Distribution) Order, 1990 (the 1990 Order)for equitable distribution of essential commodities. Section 3 of the 1990 Order provided for setting up of fair price shops and section 4 of this Order permits the State Government to issue directions for running of these shops. The State Government by G.O. dated 3.7.1990 issued an Order for grant and running of fair price shops. The State Government substituted the U.P. Scheduled Commodities Distribution Order, 1990 by issuing the new order in 2004 termed as the U.P. Scheduled Commodities Distribution Order, 2004. Said control order has been enforced on 24.12.2004.
Uttar Pradesh Scheduled Commodities Distribution Order, 2004 in context of Government Order dated 29.7.2004 has been subject matter of interpretation before the Division Bench in the case of Harpal Versus State of U.P. and others in Civil Misc. Writ Petition No. 58470 of 2005 and the view taken has been that both the Government Orders as well as provision of Distribution Order are still co existing and decision will have to be taken keeping in view of Government Order dated 29.7.2004 by the concerned authority on the basis of the inquiry report, by speaking order on objective consideration of record. Relevant extract of said judgement is being quoted below.
" ^^4- fuyfEcr dh x;h nqdkuksa ds fo:) tkWap dh dk;Zokgh vf/kdre ,d ekg esa vfuok;Z :i ls iwjh dh tk;sxh rFkk tkWp esa lEcfU/kr nqdkunkj dks lquokbZ dk iwjk ekSdk fn;k tk;sxkA lEcfU/kr nqdkunkj dk ;g nkf;Ro gksxk fd og tkWp esa viuk iwjk lg;ksx ns rkfd tkWp dk dk;Z tYnh ls tYnh iwjk fd;k tk lds rFkk fu;qfDr izkf/kdkjh }kjk izdj.k esa xq.k nks"k ds vk/kkj ij vfUre fu.kZ; fy;k tk ldsA ;fn nqdkunkj }kjk tkap esa lg;ksx ugha fn;k tk jgk gks vkSj tkap esa foyEc djus dk iz;kl fd;k tk jgk gks rks nqdkunkj dks bl vk'k; dk Hkh uksfVl tkjh fd;k tk;sxk vkSj viuk i{k j[kus dk vfUre volj iznku fd;k tk;sxkA 5- tkWp dh dk;Zokgh vf/kdre ,d ekg esa iw.kZ djds fu;qfDr izkf/kdkjh }kjk izdj.k esa vfUre fu.kZ; fy;k tk;sxk vkSj xq.k nks"k ds vk/kkj ij ,d ^^Lihfdax vkMZj** tkjh fd;k tk;sxkA bl vkns'k esa ;g Li"V mYys[k gksuk pkfg, fd lEcfU/kr nqdkunkj dks lquokbZ dk volj fn;k x;k vkSj mls lquk x;kA ;fn nqdkunkj us tkWp esa lg;ksx ugha fd;k gks vkSj lquokbZ ds volj dk tkucw>dj mi;ksx u fd;k gks rks vfUre vkns'k esa bl ckr dk Hkh iwjk mYys[k gksuk pkfg, fd nqdkunkj dks volj iznku fd;k x;k rFkk vfUre uksfVl fn;k x;k ijUrq mlus tkucw> dj volj dk mi;ksx ugha fd;k vkSj tkWp esa lg;ksx ugha fd;kA** Paragraphs 4 and 5 of the Government order provides that the shops where the licence of fair price shop dearer has been suspended enquiry must be completed within a period of one month and in the enquiry the licensee should be given opportunity of hearing and if the licensee tries to delay the enquiry then a notice be given to him fixing a last date of enquiry and thereafter final speaking order on merits would be passed. The provisions of paragraphs 2,4, and 5 are mandatory in nature and its non compliance would vitiate the order passed by the concerned authority. Paragraph 7 had fixed a period of one month for enquiry and another month for passing cancellation order and for appointment of new dealer. It further provides that where a fair price shop licence has been suspended/cancelled the fair prices shop will be attached for a maximum period of two months.
The Additional chief Standing Counsel has urged that the Uttar Pradesh scheduled Commodities Distribution Order, 2004 (in brief the 2004 Order ) which was notified and published on 20.12.2004 has superseded the government order dated 29.7.2004. The argument is devoid of any merits. It is necessary to extract clause 30 and31 of 2004 order as under"-
30. Savings:- Any act performed under the provisions of the Uttar Pradesh scheduled Commodities Distribution Order, 1990, which is hereby repealed prior to commencement of this order shall be deemed to have been validly performed under the provisions of this 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"
From a reading of clause 30 it is clear that the Uttar Pradesh scheduled Commodities Distribution Order, 1990 was superseded and repealed. Clause 31 of 2004 Order states that it will have effect irrespective of any thing contrary to it contained in any earlier order issued by the State Government. The 2004 Order was issued by the state Government for maintaining the supplies of food grains and other essential commodities and for securing their equitable distribution and availability at fair prices. Its clause 21 is concerned with monitoring of fair price shops by the food officer and he was to make regular inspections. Clause 22 of the Order gave power to the Food Officer and other officers the power of entry, search and seizure and clause 23 gave power to the State Government to authorise any person to in respect the stocks of scheduled commodities other than the officers mentioned in clause 22. So far as the maintenance of supply of food grains and other essential commodities and their distribution and availability at fair price shop was concerned the 2004 Order provided stringent methods to deal with the erring licensees of fair price shops. But the 2004 Order did not provide any procedure for suspension/cancellation of the licences or agreement of fair price shop licensees. The 2004 Orders did not lay down any procedure as to how and in what manner the licence/agreement of a fair price shop licensee/agent has to be suspended or cancelled nor any time frame has been provided. On the other hand, the government order dated 29.7.2004 prescribes the procedure for taking recourse to suspension/cancellation by the officers and fixes a time frame for taking action against the licensees. The government order dated 29.7.2004 does not contain any provision which is contrary to 2004 Orders. The 20043 Order has not superseded the government order dated 29.7.2004. The Government Order dated 29.7.2004 and 2004 Order dated 20.12.2004 operate in different fields. We are of the considered opinion that the Government order dated 29.7.2004 and the 2004 Order dated 20.12.2004 are valid and are still in force and are applicable in the State of Uttar Pradesh.
Apart from this in term of sub clause (3) of Clause-4 of Uttar Pradesh Scheduled Commodities Distribution Order, 2004 there is statutory agreement and as per the terms and conditions of the statutory agreement, in para 22 it has been mentioned that in the departmental action which will be taken, opportunity of hearing has to be afforded and thereafter decision has to be taken. Para 22 of the aforementioned statutory agreement is being extracted below:-
^^1- ;fn vkSj tc fdlh ,rn~ iwoZ mfYyf[kr 'krksZ vkSj izfrcU/kksa esa ls fdlh dk Hkh vfHkdrkZ }kjk mYya?ku fd;k tk; vFkok @ vkSj vuqikyu u fd;k tk; rks l{ke izkf/kdjh] 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:) vxzsrj tkap ,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/k i= fujLr dj ldrk gS rFkk lEiw.kz izfrHkwfr jkf'k 'kklu ds i{k esa tCr dj ldrk gSA 2- ;fn fdlh izdj.k esa vfHkdrkZ dh dsoy izfrHkwfr dh gh jkf'k vkaf'kd vFkok iw.kZ :i ls l{ke izkf/kdkjh }kjk tCr dh tkrh gS rks tCr izfrHkwfr jkf'k dh izfriwfrZ vfHkdrkZ }kjk dj fn;s tkus ds mijkUr gh vfHkdrkZ }kjk iqu% nqdku dk lapkyu fd;k tk ldsxkA 3-,sls fdlh Hkh vkns'k ds fo:) vfHkdrkZ }kjk mRrj izns'k vuqlwfpr oLrq forj.k vkns'k 2004 ds izkfo/kku 28 ds vUrxZr vihy izkf/kdkjh ds le{k fu/kkZfjr vof/k ds vUnj vihy nkf[ky dh tk ldsxhA** Apart from that this court in the case of Ram Murat V. Commissioner, Azamgrh Division, Agamgrh 2006 (4) AWC 3419 after careful consideration of the provision has taken following view. Relevant para no. 15 is being extracted below:-
15. 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.
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.
In the present case this is accepted position that after order has been passed by the Sub Divisional Magistrate on 24.12.2007 for appointment of new agent based on old resolution, newly appointed agent was obliged to enter into statutory agreement as is provided in sub-clause (3) of Clause 4 of Uttar Pradesh Scheduled Commodities Distribution Order, 2004 which is statutory agreement and against the grant of agency under 2004 of Control Order, there is no provision of appeal inasmuch as appeal has been provided for only against the order of Food Officer under sub-clause (2) of Clause 28 when order has been passed refusing ration card or renewal of ration card and sub-clause (3) of Clause 28 by any agent against order of suspension or cancellation of agreement of fire price shop. The legislature has consciously not provided any appeal whatsoever against the action of appointment of any agent whatsoever. In case arguments advanced by the petitioner is accepted, then net effect of the same would be that in spite of fact that there is no provision of appeal provided for against the order of appointment of the fair price shop agent in whose favour statutory agreement is there in term of sub-clause (3) of Clause 4 of Uttar Pradesh Scheduled Commodities Distribution Order, 2004, even then taking recourse of the Government Order dated 3.7.1990 appeal would lie. Sub clause (3) of Clause 28 clearly provides that against the order of suspension and cancellation qua an agent aggrieved, appeal has been provided for but no appeal has been provided for, against grant of another fair price shop agency. The provision of Government Order dated 3.7.1990 in case it is permitted to give way then the same would be in direct confrontation with the provision in terms of Clause 31 of 2004 order as it would even through Appeal is not at all provided in 2004 Control Order amount to providing forum of Appeal. Even though resolution has been passed earlier to enforcement of 2004 Order, the action of grant of agency is under 2004 Control Order, by treating the said resolution valid in terms of 2004 Control Order, and passing order accordingly on 24.12.2007. Only action taken on the earlier occasion in the shape of resolution has been saved in term of clause 30 of 2004 Control Order, and thereafter further follow up action has been taken in term of 2004 Control Order, and there is no provision of Appeal provided for against the action of appointment of agent.
This Court in the case of Babu Ram Singh Versus state of U.P. sand others 2009(10) ADJ 24 in respect of right of appeal has held as follows:-
Learned counsel for the petitioner contends that the appeal can only be filed by the aggrieved agent and that the word "agent" is defined under Clause 2(c) of the said order, which is quoted below:
"(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;"
It is further submitted that without taking notice of the said preliminary objection, the learned Commissioner proceeded to pass an interim order in an incompetent appeal.
Learned counsel for the respondents have filed their counter affidavits and it is urged on behalf of the respondent-Gaon Sabha that the Gaon Sabha is not precluded from filing any appeal and further the matter is still pending before the Appellate Authority and, therefore, such a issue should be decided therein and there is no cause for interference at this stage.
Learned standing counsel, on the other hand, contends that to deprive the Gaon Sabha of its right of appeal would be allowing such unscruplous persons to get away on a technical plea and therefore even otherwise the matter ought to be left open keeping in view the fact that the order of the Sub-Divisional Magistrate does not contain any reason for restoring the license of the petitioner.
Having heard learned counsel for the parties, the position in law is more than clear, inasmuch as, sub-clause 3 of Clause 28 clearly prescribes that an appeal shall be maintainable on behalf of an aggrieved agent. The word "agent" has also been defined under Clause 2 (c). In such a situation the Gaon Sabha cannot be said to have been conferred with a right to prefer an appeal under Clause 28.
It is by now well settled that an appeal is a creation of a statute and the right therein can neither be enhanced or reduced on the strength of any interpretation as suggested on behalf of the Gaon Sabha. Had the rule making authority intended to provide for an appeal on behalf of the Gaon Sabha then the words prescribing the right of appeal in sub-clause 3 of Clause 28 would have been any person instead of any aggrieved agent.
An appeal is provided under a statute for the correction of an error which might have crept in on account of incorrect application of law and such right of appeal has been explained by the Apex Court in the case of Sita Ram and others Vs. State of Uttar Pradesh reported in (1979) 2 SCC 656 (see paragraphs 25, 41 and 45).
Accordingly this Court is of the opinion that where the statute is explicit and clear, and does not suffer from any ambiguity there is no scope for the Courts to read a provision which does not exist. The Gaon Sabha ought to have either filed a writ petition before this Court or could have approached a forum which may be otherwise available in law.
In the facts and circumstances of this case, the Gaon Sabha filed an appeal under the said provision which obviously was not maintainable before the Commissioner at the instance of the Gaon Sabha. In view of this, the interim order passed by the Commissioner on an incompetent appeal cannot be sustained.
Consequently, in the fact of the case, as the agency has been accorded in favour of the agent is in consonance with the provision as contained under 2004 Control Order though process has been initiated prior to enforcement of the same but the fact of the matter is that agency in question has been accorded in consonance with the provision of 2004 Control Order, consequently, Commissioner, Gorakhpur Division, Gorakhpur has taken rightful view that appeal was not competent and maintainable as such the only issue which has been pressed before the court is answered in negative. Other issues have not been pressed.
Learned Standing Counsel at last has referred to Annexure CA-I wherein notice has been issued to Shiv Pratap Gupta for taking of action. This writ petition has been decided on the issues raised, and dismissal of this writ petition would not come in the way of State Respondent to take action against the agent, in accordance with law after affording opportunity of hearing to the said agent.
With these observations, writ petition is dismissed.
Dt. 10.12.2010 T.S.