In the present case subject matter of challenge is an order passed by the Sub Divisional Magistrate, Tehsil Chandpur, District Bijnore dated 24.8.2008 cancelling the fair price shop licence of the petitioner and order dated 28.5.2009 of its affirmance in appeal.
Brief background of the case as mentioned by the petitioner is that on 2.7.2008 for the first time petitioner was appointed as fair price shop agent, as is provided for under Uttrar Pradesh Scheduled Commodities Distribution Order, 2004. At the premises of the petitioner, inspection was carried out on 21.7.2008 by Supply Inspector and Naib Tehsildar and various irregularities were pointed out and based on the same, order of suspension was passed and petitioner was asked to submit his written reply. Petitioner submitted his reply on 31.7.2008 and thereafter, on 24.8.2008 orders have been passed cancelling his faire price licence. Aggrieved, petitioner preferred an appeal, same has also been rejected on 28.5.2009. At this juncture present writ petition has been filed.
Counter affidavit has been filed and therein photo copy of the inquiry report and photo copy of the show cause notice/suspension order has been appended.
Rejoinder affidavit has been filed disputing the averment mentioned in the counter affidavit and reiterating the averment mentioned in the writ petition.
After pleading mentions above, have been exchanged, and thereafter, present writ petition has been taken up for final hearing/disposal with the consent of the parties.
Sri. R.K. Verma, Advocate, learned counsel for the petitioner contended with vehemence that in the present case petitioner has been meted with totally arbitrary and discretionary treatment and after submitting reply, at no point of time, any inquiry whatsoever has been conducted and ignoring specific reply so submitted by the petitioner, straight way opinion has been formed and as such orders are liable to be quashed.
Countering the said submission, learned Standing Counsel on the other hand contended that rightful view has been taken in the matter, as such no interference is required by this court.
After respective arguments have been advanced, relevant provision, which 2 covers the field namely; Uttrar Pradesh Scheduled Commodities Distribution Order, 2004 is being looked into:-
4. Running of fair price:- (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.
(2) A person appointed to run a fair price shop under sub-clause(1) shall act as the agent of the State Government.
(3) A person appointed to run a fair price shop under sub-clause (1) shall sign an agreement, as directed by the State Government regarding running of the fair price shop as per the draft appended to this order before the competent authority prior to the coming with effect of the said appointment.
21. Monitoring in accordance with the order issued by the State Government-(1) A food Officer shall ensure proper monitoring of fair price shops and prescribe model sale register, stocks register and ration card register in accordance with the order issued by the State Government. (2) Food Officer shall ensure regular inspection of fair price shop in his asrea not less than once in a month in urban area and not less than once in a month in rural area by the supply inspector. The State Government may issue order specifying the inspection schedule, list of checkpoints and authority responsible for ensuring compliance of the said order. (3) (i) Competent authority shall ensure constitution of Vigilance Committee Administrative Committee ( Gram Sabha Level) at fair price shop which shall monitor the functioning of the fair price shop.
(ii) Meeting of such Committees shall be held on regular basis and in a manner as directed by the State Government.
(4) Competent Authority shall ensure a periodic system of reporting and the complete information in this regard shall be sent in the prescribed from a follows:-
(i) By fair price shops to the District Authorities by the 7th of the month following the month for which allocation is made in Form-A
(ii) By the District Authorities to State Government by the 15th of the month following the month for which allocation is made in Form-B. (5) Competent authority shall ensure that Scheduled Commodities are made available to agents in accordance with the roster prescribed by the State Government in this regard.
(6) Monthly allocation of good grains, sugar, kerosene and other Scheduled commodities shall be supplied to the agent only and that only on receipt of a certificate, issued by the concerning Vigilance Committee, Administrative Committee duly countersigned by the supply or Senior Supply Inspector of Village Development Officer of the area clearly mentioning that prior month's allocations have been distributed by the agent in accordance with the rules.
(7) Competent authority shall ensure delivery of one copy of allocation order made to fair price shop simultaneously to Gram Panchayat or Nagar Palika or Nagar Nigam as the case may be and Vigilance Committees or any other body nominated for monitoring the functioning of the fair price shops by the State Government.
(8) Competent authority and Food Officer shall check the diversion, substitution or adulteration of Scheduled Commodities.
22. Power of entry, search , seizure, etc.-(1) The Food Officer, the Competent Authority, the Senior Supply Inspector of Supply Inspector may within his jurisdiction with such assistance if any, as he thinks fit-
(a) Require the owner, occupier or any other person in charge of any place, premises, vehicles or vessels in which he has reason to believe that 3 any contravention of the provisions of this order has been or is being, or is about to be made, to produce any book, account or other documents showing transaction relating to such contravention.
(b)Enter, inspect or break open and search any place or premises, vehicle or vessel in which he has reason to believe that any contravention of the provisions of this order has been or is being or is about to be made. © Examine and seize any books of accounts and documents which in the opinion of such officer may be useful for or relevant to any proceeding under this order and return such books of accounts and documents to the person from whom they were seized any books of accounts and documents which in the opinion of such officer may be useful for or relevant to any proceeding under this order and return such books of accounts and documents to the person from whom they were seized after copies thereof or extracts there from as may be considered necessary and certified copy of the person to be correct have been taken.
(d) seize any Scheduled Commodities, if he is satisfied that there has been contravention of this order;
(e) Send a report as provided in Section 6(a) of the Act to the Collector of the District in which such seizure is made and the Collector may thereafter precede to confiscate the Scheduled Commodities, animals, vehicles vessel or other conveyance so seized in accordance with the provisions of the Act.
(2) The provisions of Section 100 of the Code of Criminal Procedure, 1973 (Act No.2) of 1974) relating to search shall as far as may apply to search under this clause.
23. Power of State Government to authorize any person to inspect etc.- The State Government may authorize any person other than those referred to in Clause 22 to perform all (sic or ) any of the functions detailed below:-
(a) to inspect any stocks of Scheduled Commodities, books of accounts or other documents pertaining to any Scheduled Commodities with a view to ensure that no contravention of this order is being made and for the purposes of such inspection enter any premises used or believe to be used for the sale or distribution or storage of Scheduled Commodities:
(b) to require any person to make any statement or furnish any information or produce any documents or furnish any information or produce any document or article in his possession or under his control relating to the purchase, sale distribution or storage of any Scheduled Commodities and any person so required shall comply with such requisition. © to inspect any ration card or require any person to give any information in regard to such member of his household as are included in the ration card.
25.. Conditions to be observed by the agent- The agent shall observe such conditions as the State Government or the Collector may by an order in writing direct from time to time in respect of opening of shop maintenance of stocks, supply and distribution of Scheduled Commodities, maintenance of accounts, keeping of the registers filing returns and issue of receipt of Identity Card holder and other matters.
28. Appeal -(1) All appeals shall lie before the Concerned Divisional Commissioner who shall hear and dispose of the same may by order delegate his/her powers to the Assistant Commissioner Food 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 aggrieved person or agent has been given a reasonable opportunity of being hear. (5) Pending the disposal of an appeal the Appellate Authority may direct that the order under appeal shall not take effect until the appeal is disposed of.
State Government for the purpose of maintaining supply of food grains and other essential commodities and for securing their equitable distribution and availability at fair prices in exercise of the powers conferred under section 3 of the Essential Commodities Act, 1955 (Act No. 10 of 1955) read with the order of the Government of India, Ministry of Consumer Affairs, Food and Public Distribution, Department of Food and Public Distribution, published under GSR 630 (E), dated August 31, 2001 and all other powers enabling him in this behalf, the Governor mad order known as Uttar Pradesh Scheduled Commodities Distribution Order, 2004, which was published in U.P. Gazette, Extra Part 4, Section (Kha), dated 20.12.2004. As per clause 4 of Uttar Pradesh Scheduled Commodities Distribution Order, 2004 fair price shop was to be run through such person and in such manner as the Collector, subject to the directions of the State Government was to decide. Sub para (2) of para 4 provides that a person appointed to run a fair price shop under sub-clause (1) shall act as the agent of the State Government. Sub clause (3) of Clause 4 provides that a person appointed to run a fair price shop under sub-clause (1) shall sign an agreement, as directed by the State Government regarding running of the fair price shop as per the draft appended to this order before the competent authority prior to the coming with effect of the said appointment. Clause 21 empowers Food Officer to monitor in accordance with the order issued by the State Government and further ensures that monthly allocation of schedule commodities, shall be supplied only on receipt of certificate, clearly mentioning that prior months allocation have been distributed as per Rules. Clause 22 gives authority of entry, search, seizure. Clause 25, obliges agent to comply with directions issued by State Government or Collector in respect of opening of shop, maintenance of stock, supply and distribution of Schedule Commodities, maintenance of accounts, keeping of register, filing returns and issue and receipt of card holders and other matter. Clause 26, puts restriction on transfer of agency. Clause 27 deals with punishment for contravention, in accordance with orders issued by State Government. Clause 28 confers right of Appeal. Clause 29, is saving clause for action taken under this order. Clause 30 is again saving clause, which saves action taken under repealed 1990 order. Clause 31 contains non obstate clause, dealing with overriding effect.
Uttar Pradesh Scheduled Commodities Distribution Order, 2004 in context of 5 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 judgment 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, 1999, 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 on 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 6 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:) vxzrs j 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 izn's k vuqlfw pr 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** Perusal of aforementioned provision quoted above would go to show that as per agreement entered in between the State Government and Agent that if there is any breach of conditions and restrictions, then departmental action is feasible and based on the evidence available against him after providing opportunity of hearing to put forth his version, decision has to be taken. This particular provision assures that agent has to be given fair treatment before action is taken for cancellation of his agreement.
On the touch stone of the provision quoted above, the facts of the present case are being adverted to. Admitted position is that petitioner has been appointed as fair price shop licence on 2.7.2008 and thus he was new entrant in the business of the distribution of the fair price shop commodities. On 21.7.2008 inspection has been carried out at his premises and same reflects that qua rest of the stock, entry nil was there and qua kerosene being stock was shown as 990 litres and total stock was shown as 990 litres and remaining stock was shown as 990 litres. After said inspection note has been made, order of suspension has been passed wherein all seven charges were mentioned. Petitioner submitted his reply and in the said reply so submitted, petitioner denied the charges and also specifically denied that as far as distribution of kerosene oil is concerned, it has been rightly distributed at prescribed rate and no incumbent, whatsoever has made complaint against him. After reply had been submitted on 31.7.2008 taking into consideration reply so submitted straight way order of cancellation has been passed. Once specific case of the petitioner has been that no card holder has come forward against him and said name had not all been disclosed, and along with counter affidavit, document has been sought to be appended then petitioner ought to have been confronted with the said material, instead of placing reliance on reply submitted by the petitioner, and forming opinion, Authority concern has proceeded to pass order even without considering full reply, and ignoring the specific reply submitted on various score. Fact of the matter is that after reply had been submitted by the petitioner, then in case further enquiry was required then further opportunity ought to have been afforded to the petitioner, and in the present case without providing reasonable opportunity order has been passed.
Consequently, orders dated 24.8.2009 and 28.5.2009 are hereby quashed and set aside. Passing of this order will not prevent the authority concerned from passing fresh order in accordance with law.
With these observations, writ petition is allowed.
Dt. 19.01.201 T.S.