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2007 DIGILAW 1682 (ALL)

SATANAND UPADHYAY v. STATE OF UTTAR PRADESH

2007-05-31

ASHOK BHUSHAN

body2007
JUDGMENT Hon’ble Ashok Bhushan, J.—Heard learned Counsel for the petitioner and Sri Piyush Shukla, learned Standing Counsel appearing for the respondents. 2. By this writ petition the petitioner has prayed for quashing the order dated 28.4.2007 passed by Sub-Divisional Officer cancelling the fair price shop agreement of the petitioner. 3. By the impugned order the Sub-Divisional Officer has held that in view of the Government Order dated 18th July, 2002 the petitioner, who was running a fair price shop having been elected as Pradhan, he cannot continue as fair price shop dealer. On the basis of the said Government Order the petitioner’s fair price shop agreement has been cancelled. 4. Learned Counsel for the petitioner challenging the impugned order contended that the settlement of fair price shop agreement is done in accordance with the Uttar Pradesh Shop Commodities Distribution Order, 2004. He submits that the Distribution Order 2004 does not contain any such prohibition that a person who has elected as a Pradhan cannot continue as fair price shop dealer. He contends that the petitioner has been continuing as a fair price shop dealer since 1993 and the factum of petitioner having been elected as Pradhan in 2005 shall not disentitle the petitioner from running the fair price shop. He further contends that the executive power of the State cannot be exercised contrary to the Statutory Rule, 2004. 5. Sri Piyush Shukla, learned Standing Counsel submitted that there is no conflict in the Government order dated 18th July, 2002 and the Distribution Order 2004 and he submits that the executive power of the State is co-extensive with the legislative power and there is no conflict. The order of Sub-Divisional Officer is in accordance with law. 6. I have heard learned Counsel for the parties and considered the material on record. 7. The copy of the Government Order dated 18th July, 2002 has been brought on the record as ‘Annexure-3’, by the said Government Order in earlier Government Order dated 3rd July, 1990, Clause 4(7) has been added, which contains a clause that if a fair price shop holder or a member of his family is elected as a Pradhan his agreement of the fair price shop shall be cancelled. There cannot be any dispute that the Clause-4 (7) covers the facts of the present case. There cannot be any dispute that the Clause-4 (7) covers the facts of the present case. The petitioner who is continuing as a fair price shop holder having been elected as Pradhan disqualified to continue the allotment by virtue of Clause 4(7). 8. The submission of the petitioner’s Counsel now is that the settlement of fair price shop agreement is done in accordance with the Uttar Pradesh Shop Commodities Distribution Order 2004 and there is no such clause in the Distribution Order 2004 to the above effect. In this context the paragraph 4 of the Distribution Order 2004 is relevant which is quoted as below : "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." 9. Clause 4(1), thus continue to recognise the right of the Government to issue directions for running the fair price shop, this shall continue the earlier Government Order dated 18.7.2002 and the orders issued by the Government from time to time. There is no conflict in the Government Order dated 18th July, 2002 and the Distribution Order 2004. 10. It is well settled that Government orders can supplement the field which is not covered by statutory provision this was laid down by the Apex Court in AIR 1967 SC 1910 , Santram Sharma v. State of Rajasthan and others. Moreover, the executive power of the State under Article 162 of the Constitution is co-extensive with the legislative power under the Essential Commodities Act, 1955, the State Government has been delegated the power to issue relevant control orders, hence, the State has also the executive power to issue Government Order covering the field. It is true that no executive order can be issued which is contrary to any statutory provision. 11. In the facts of the present case there is no conflict between the Government Order dated 18th July, 2002 and the Distribution Order, 2004. The Government Order can very well continue. I do not find any illegality in the order of Sub-Divisional Officer cancelling the fair price shop of the petitioner. The writ petition is dismissed as above. ————