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2006 DIGILAW 463 (RAJ)

Paras Mal v. State of Rajasthan

2006-02-10

DINESH MAHESHWARI

body2006
Judgment Dinesh Maheshwari, J.-The petitioner has preferred this writ petition assailing the order dated 14.09.2001 (Annex. 4) passed by the Addl. Commissioner, Food and Civil Supplies Department Rajasthan, Jaipur in Appeal No. 6/2001 whereby the learned Addl. Commissioner has accepted the appeal filed by the respondent No. 5 and has set aside the order dated 12.01.2001 issued by the Collector (Civil Supplies) Chittorgarh appointing the petitioner as fair price shopkeeper for Gram Panchayat Karsana, Tehsil Dungla, District Chittorgarh. 2.Brief facts relevant for determination of the questions involved in this writ petition are that the Collector (Civil Supplies) Chittorgarh invited applicatiions for authorization of fair price shopkeeper for supplies of food grains and other essential articles in Gram Panchayat, Karsana, Tehsil Dungla. In all six applications were received including that of the petitioner and the respondent No. 5. On the recommendation of the Allotment Advisory Committee, and order dated 12.01.2001 (Annex.2) was made for issuance of authorization to the petitioner Parasmal as fair price shopkeeper; and the petitioner deposited an amount of Rs. 500/-as security on 23.01.2001 (Annex.3). The respondent No. 5 submitted an appeal before the Addl. Commissioner, Food and Civil Supplies Department, Rajasthan, Jaipur questioning the order made in favour of the petitioner as being illegal and improper for the reasons; (a) that the petitioner was engaged in his cloths and grocery business and has also obtained PCO as an unemployed person; (b) that the petitioner was the brother of Sarpanch and Up-Sarpanch of the Panchayat who were the members of Allotment Advisory Committee and made the recommendation on favoritism; (c) that the petitioner was facing trial in criminal cases and in one of the cases, he had been convicted under Section 19/54 of the Rajasthan Excise Act and, therefore, he was not of good moral character and could not have been appointed as fair price shopkeeper. 3.It appears that in response to the appeal so filed by the respondent No. 5, the petitioner submitted reply alleging that the appellant Bhanwarlal was on inimical terms with him and was of quarrelsome nature and an FIR No. 143/1992 dated 211.1992 was registered against him at Police Station, Dungla for offences under Sections 323, 324, 341 IPC; another FIR No. 227/1994 and yet another FIR No. 235/2000 in the same Police Station, Dungla were referred and it was pointed out that various other cases were pending against the appellant in different Courts. The petitioner submitted that he was rightly authorised as fair price shopkeeper and the complaint against him was baseless. It appears that on the part of the District Supply Officer and the Collector, Chittorgarh also, the appeal was opposed with the submissions that the petitioner was appointed on the basis of the recommendation of Allotment Advisory Committee in accordance with law. 4.The learned Addl. Commissioner, after considering the record of the case and after hearing the parties, found that the petitioner had been appointed on the basis of recommendations of the Allotment Advisory Committee but no enquiry was made about pending criminal cases against him and so also of his having been convicted in one such criminal case. After examining the copy of Judgment dated 110.1999 of the Judicial Magistrate, Dungla in criminal Case No. 77/1992, the learned Addl. Commissioner found that the petitioner was convicted under Section 19/54 of the Rajasthan Excise Act and was sentenced to one years simple imprisonment and fine of Rs. 2000/-. The learned Addl. Commissioner had also required the District Supply Officer, Chittorgarh to enquire and report about the criminal cases against the petitioner and so also the appellant; and it was reported that against both of them various criminal cases were registered in Police Station and in various Courts. Upon consideration of such facts, the learned Addl. Commissioner was of opinion that the allotment made in favour of the petitioner was not proper and there was no justification for allotment of a fair price shop to the petitioner without proper enquiry. Accordingly, the leraned Addl. Commissioner by the impugned order dated 14.09.2001 (Annex. 4) set aside the order dated 12.01.2001 of issuance of authorisation to the petitioner as fair price shopkeeper and the matter was remanded to the Collector for re-advertisement and authorisation of the shopkeeper in accordance with law. Accordingly, the leraned Addl. Commissioner by the impugned order dated 14.09.2001 (Annex. 4) set aside the order dated 12.01.2001 of issuance of authorisation to the petitioner as fair price shopkeeper and the matter was remanded to the Collector for re-advertisement and authorisation of the shopkeeper in accordance with law. Hence, the present writ petition. .5.Assailing the order dated 14.09.2001, learned Counsel Mr. Rakesh Arora appearing for the petitioner strenuously contended that the entire approach of the learned Addl. Commissioner while passing the order impugned had been from an altogether wrong and erroneous angle and .the order remain contrary to the provisions of the Rajasthan Food Grains and other Essential Articles (Regularisation of Distribution) Order, 1976 (the Order of 1976 hereafter); that there is no provision in the Order of 1976 laying down the criteria that a person facing criminal trial or having been convicted would not be eligible to be granted authorisation as fair price shopkeeper; that pendency of criminal case or conviction as such is not a disqualification under the law; that authoristion was granted to the petitioner after consideration of all the facts and after the requisite enquiry and the petitioner had already deposited security amount and cancellation of his authorisation was illegal, arbitrary and in deprivation of his only source of income. Learned Counsel Mr. Arora referred to the submissions made in the reply on behalf of the respondents and the Guidelines (Annex. R/1) dated 10.05.1999 and urged that under Clause (6) thereof , it has been provided that the applicant should be adult, sane and of steady mind and bearing good moral character and should not be a proclaimed insolvent and ought not to have been convicted under the Essential Commodities Act and his authorisation ought not to have been cancelled during last seven years after being found guilty. Learned Counsel submitted that alleged conviction of the petitioner under Sections 19/54 of the Rajasthan Excise Act has no co-relation with the disqualifications spelt out in the guidelines and the Addl. Commissioner was not justified in relying upon an entirely irrelevant matter. Learned Counsel submitted that at the time of granting authorisation to the petitioner, there was no such condition spelt out that he should not be a convict at all and, therefore, such remote past conduct cannot deprive the petitioner altogether of his entitlement to obtain a fair price shop. 6.Per contra, learned Dy. Learned Counsel submitted that at the time of granting authorisation to the petitioner, there was no such condition spelt out that he should not be a convict at all and, therefore, such remote past conduct cannot deprive the petitioner altogether of his entitlement to obtain a fair price shop. 6.Per contra, learned Dy. Government Advocate contended that convict of an offence under Sections 19/54 of the Rajasthan Excise Act of unauthorisedly possessing and selling liquor cannot be held to be a person fit to manage a fair price shop meant for distribution of essential articles to the public. Learned Counsel also submitted that no authorisation was issued to the petitioner and only an allotment letter was issued and that has rightly been quashed. Learned Counsel also pointed out that the recommendations of the Advisory Committee cannot be said to be fair and impartial for the sister-in-law and brother of petitioner being respectively the Sarpanch and Up-Sarpanch of the Panchayat and being the members of same Advisory Committee. 7.Having heard learned Counsel for the parties and having examined the material on record, this Court is clearly of opinion that this writ petition remains totally baseless and deserves to be dismissed with costs. 8.From the undenied and undeniable facts available on record it is but apparent that the petitioner has been attempted to be awarded the fair price shop in a wholly illegal and irregular and rather covert manner; and though the complaint has come from a rival candidate, whose own credentials are not free from doubt, but the allotment to the petitioner was nevertheless liable to be and has rightly been set aside by the learned Addl. Commissioner. .9.It is not in doubt that the petitioner is a convict for offences under Sections 19/54 of the Rajasthan Excise Act nor it is disputed that his sister-in-law and brother were the Sarpanch and Up-Sarpanch of the Gram Panchayat and were party to the process which resulted in recommendation in his favour Although not stated in explicit terms in the writ petition, the petitioner has made the following averments in the rejoinder,- ."4. That the contents of Para No. 4 of the reply are not admitted in the manner stated. It is submitted that the conviction of the petitioner only under Section 19/54 of the Rajasthan Excise Act which is not a heinous offence. That the contents of Para No. 4 of the reply are not admitted in the manner stated. It is submitted that the conviction of the petitioner only under Section 19/54 of the Rajasthan Excise Act which is not a heinous offence. It is further submitted that it makes no difference if the petitioners sister-in-law and brother were Sarpanch and Up- sarpanch because the authorisation was sought for the petitioner and not for them. There is no basis to say that the petitioner is running a flour mill. Fact is that the petitioner is umemployed." 10.A big question mark on the purity of the process surfaces when admittedly the sister-in-law and the brother of an applicant are the members of the Panchayat concerned and are involved in the proceedings of the Advisory Committee. Such interest of the persons at the helm of affairs in the Panchayat in a particular candidate (the petitioner) has not even been disclosed in the proceedings of the Committee (Annex.1) 11.Moreover, from the proceedings Annexure 1, it does appear that pendency of the criminal case against the respondent No. 5 Bhanwarlal has distinctly been set forth; but in relation to the petitioner, no such fact has even been mentioned. The relevant noting in relation to these two applicants as made in the said proceedings reads as under:- 12.It is evident that on one hand pendency of a case under Section 323 IPC against the respondent No. 5 and his quarrelsome nature have been taken into consideration, and on the other hand, the factum of pendency of any case against the petitioner and/or his conviction, particularly in relation to an offence under Sections 19/54 of the Rajasthan Excise Act has not even gone into the decision making process of the Committee; and the entire proceedings are vitiated on this count alone. Either the facts were concealed or were simply omitted from consideration. In either event, the result remains the same. The decision is vitiated because of failure of the Committee to take a relevant fact into consideration before making its recommendations. 13.The submissions that the Order of 1976 does not lay down the criteria that a person facing criminal trial or having been convicted would not be granted authorisation are entirely misplaced. In either event, the result remains the same. The decision is vitiated because of failure of the Committee to take a relevant fact into consideration before making its recommendations. 13.The submissions that the Order of 1976 does not lay down the criteria that a person facing criminal trial or having been convicted would not be granted authorisation are entirely misplaced. The Order of 1976 has been issued by the State Government for maintaining supplies of foodgrains and essential commodities and securing its equitable distribution and availability at fair prices; and no person other than an authorisation holder could sell any of the foodgrains or any other essential articles that are supplied by the Government. The executive power of a State extends to the matters with respect to which the Legislature of the State has powers to make laws as provided in Article 162 of the Constitution of India. Trade and commerce in, and the production, supply and distribution of the food stuffs is covered by Entry-33 in List III of Seventh Schedule and, therefore obviously the executive power of the State extends to such matters; and the Government can make a scheme of distribution of food stuffs through its fair price shops and, as a necessary corollary, can provide for the criterion for authorisation of handling such fair price shop. The executive power of the State to issue guidelines for grant of such authorisation under the Order of 1976 like the one issued on 10.05.1999 (Annex. R/1) cannot be doubted; and the minimum basics provided thereunder for fair and rational consideration of the applications for grant of authorisation remain unexceptionable. There is no fundamental right in any person to be appointed as an authorised fair price shopkeeper of the Government; and for the very object sought to be achieved by grant of such authorisation, the criterion as laid down in the guidelines appear to be of intrinsic necessity for fair operation of the provisions of the Order of 1976. There is no fundamental right in any person to be appointed as an authorised fair price shopkeeper of the Government; and for the very object sought to be achieved by grant of such authorisation, the criterion as laid down in the guidelines appear to be of intrinsic necessity for fair operation of the provisions of the Order of 1976. 14.Learned Counsel for the petitioner then strenuously pressed the submissions that the conviction under Section 19/54 of the Rajasthan Excise Act is of no relevance inasmuch as it cannot be said that the petitioner suffered from any of the disqualifications as spelt out by the guidelines; and it is only the conviction under Essential Commodities Act that has any bearing on the entitlement of a candidate of fair price shop; and merely for conviction under Rajasthan Excise Act, it cannot be said that the petitioners conduct or behaviour was not good, as required by the guidelines. These submissions too are devoid of merit. 15.The relevant requirements as stated in the guidelines (Annex. R/1) read as under:- 16.When the requirements are laid out in such broad comprehensive terms that his conduct/behaviour must be of right kind, in the words ^^pky pyu Bhd gks**] this Court is clearly of opinion that conviction under the Excise Act for illegal dealing in liquor is not such a factor which could simply be ignored from consideration while examining the over all conduct of a person particularly when he is to be entrusted with the task of handling Civil Supplies. Conviction under the Essential Commodities Act altogether puts bar on a person to obtain such authorisation; but the general conduct/behaviour of a candidate is nonetheless a matter directly relevant. 17.This Court is clearly of opinion that a person having been found guilty of dealing illegally in liquor and having been convicted for such an offence, cannot assert as a matter of right that his such past conduct be ignored altogether and he be handed over the fair price shop, fundamentally intended to ensure adequate, timely and fair distribution of essential commodities supplied by the Government to the public. A persons commitment to the society is spelt out from variety of factors and a person dealing in liquor in defiance of law and having been found guilty of such an offence, does not seem justified in claiming, as attempted in the present case, that he had not committed any heinous crime. In any case, when there were other candidates available and selection was to be made on comparative merit, such a fact of the petitioners conviction under the Excise Act could not have been ignored altogether. The learned Addl. Commissioner has rightly set aside the order made in favour of the petitioner for authorisation of a fair price shop. 18.Having examined the consideration adopted by the learned Addl. Commissioner and the totality of facts and circumstances, this Court is clearly of opinion that the writ petition remains fundamentally baseless and the learned Addl. Commissioner has not committed any illegality in passing the order dated 14.09.2001. The writ petition deserves to be dismissed with costs. 19.As a result of the discussion aforesaid, the writ petition fails and is dismissed with costs quantified at Rs. 2,200/-.