JUDGMENT By the Court.—This writ petition has been filed by the Gram Sabha, Radhopur, district Jaunpur through Chairman/Pradhan challenging the order passed by Sub-Divisional Magistrate, Madiyahu, district Jaunpur dated 25th November, 2006. 2. According to the petitioner on 25.11.2006 the fair price shop, which was suspended on the complaint of the petitioner and other villagers, has been restored on payment of penalty of Rs. 2000/- only whereas the mens rea with regard to embezzlement and other activity are apparent, therefore, the order should be quashed/set aside and an appropriate order is to be passed in this regard. 3. According to the respondent No. 5 i.e. Fair Price Shop Dealer/Distributor, there was no resolution on the part of the petitioner to proceed. 4. So far as government respondent is concerned, learned Additional Chief Standing Counsel has contended before this Court that there is alternative remedy of adjudication of appeal. When such arguments were advanced on earlier occasion, it has been called by one of us (Hon’ble Ashok Srivastava, J.) that even if the Gram Sabha can prefer an appeal or not. As a result we have fixed the matter today for hearing the same in full length. 5. The petitioner has two fold cases. It has stated that there is no embargo on the part of writ jurisdiction to pass order inspite of alternative remedy and subsequently the alternative remedy is made for the aggrieved party meaning thereby i.e. an agent. 6. We have extensively heard learned counsel appearing for both parties and upon going through the Essential Commodities Act and relevant Rules being Uttar Pradesh Scheduled Commodities Distribution Order, 2004, we find that there is a provision of appeal under Order 28 there. The Orders 4 and 22 are relevant for the purpose. Therefore, the provisions of Orders 4 and 22 of Uttar Pradesh Scheduled Commodities Distribution Order, 2004 are quoted hereunder : “4. Running of fair price shop.—(1) A fair price shop shall be run through such person and in such matter 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.
Running of fair price shop.—(1) A fair price shop shall be run through such person and in such matter 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 subclause (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. 22. Power of entry, search, seizure, etc.—(1) The Food Officer, the Competent Authority, the Senior Supply Inspector or 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 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; (c) 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 after copies thereof or extracts therefrom as may be considered necessary and certified by 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 proceed to confiscate the Scheduled Commodities, animal, 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.” 7. So far as the question whether the alternative remedy is a bar or not, we are of the view that the charges levelled against respondent No. 5 can be civil or criminal in nature, therefore, the appropriate appellate authority is the authority for the purpose of passing such order and upon considering the cause, the Court cannot jump upon an issue taking only the plea that alternative remedy is no bar in such type of sensitive matter. It relates to appropriate distribution of the foodgrains. The petitioner is representing the Panchayat. The Panchayat is the peoples’ representative and if a delinquent person is exonerated then the Gaon Sabha is definitely a person aggrieved for the purpose for hearing his cause on merit by the Commissioner. Therefore, there should not be any casual departure from such aspect of the matter. 8. So far as the plea of respondent No. 5 is concerned with regard to resolution we find from the rejoinder affidavit that permission to proceed with the case has been granted by the concerned District Magistrate on the basis of the resolution and application dated 17.4.2007. Therefore, we have called upon the petitioner to produce the copy of the resolution which is not on the record. The same has been read out before the Court. We are satisfied and we find that there is necessity of filing the same by an affidavit to this Court which will be kept with the record and this exercise will be done within 3 days from today. 9. Subject to the same, we dispose of the writ petition by directing the concerned Divisional Commissioner to hear out the cause of the petitioner on the strength of the documents available before the Court and if an appeal is filed the same may be filed within a period of 7 days from obtaining a certified copy of this order. For the purpose of effective adjudication a copy of the writ petition alongwith its annexures and affidavits can also be treated as part and parcel of the appeal. 10. No order is passed as to costs. 11.
For the purpose of effective adjudication a copy of the writ petition alongwith its annexures and affidavits can also be treated as part and parcel of the appeal. 10. No order is passed as to costs. 11. If the appeal is filed, it should be heard on merit and be disposed of upon giving fullest opportunity to all the parties positively within a period of one month from the date of filing of the same. ————