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Madhya Pradesh High Court · body

2010 DIGILAW 1060 (MP)

Mahila Rukhmani Primary Consumer Co-operative Society v. State of M. P.

2010-10-20

ALOK ARADHE, S.R.ALAM

body2010
ORDER S.R. Alam, C.J. 1. With the consent of learned Counsel for the parties, the matter is heard finally. 2. This intra-Court appeal arises from the order dated 9.4.2010 passed by learned Single Judge by which writ petition preferred by the Appellant has been dismissed. 3. Facts leading to the filing of the instant writ appeal briefly stated are that complaints were lodged against the Appellant regarding irregularities committed in respect of distribution of food stuff from the fair price shops allotted to Appellant in Ward Nos. 3, 4, 5 and 6 at Lidhora. Pursuant to the aforesaid complaints, report was sought by the Sub-Divisional Officer, Jatara, Distt. Tikamgarh from Senior Supply Officer, Jatara. Senior Supply Officer conducted an enquiry and submitted the report on 25.9.2009. On the basis of the facts found in the aforesaid enquiry, a show-cause notice dated 25.9.2009 was issued to the Appellant by the Sub-Divisional Officer. Appellant submitted a reply to the aforesaid show-cause notice. Thereafter, vide order dated 9.10.2009, the allotment of fair-price shops was cancelled by the Sub-Divisional Officer. The Appellant being aggrieved by the aforesaid order, preferred an appeal before the Collector. The appellate Authority after affording an opportunity of hearing to the Appellant, up-held the order of the Sub-Divisional Officer and subsequently, by order dated 27.10.2009, the Sub-Divisional Officer pursuant to the direction issued by the Collector, allotted the fair price shops in favour of Respondent No. 4, by way of ad-hoc arrangement. Appellant challenged the validity of the aforesaid order by filing a writ petition before the learned Single Judge. Learned Single Judge vide order dated 9.4.2010 dismissed the writ petition preferred by the Appellant. 4. Learned Counsel for the Appellant has drawn our attention to order Annexure P/7 dated 9.10.2009 passed by the Sub-Divisional Officer as well as the order sheets of the proceedings before the Sub-Divisional Officer contained in Annexure P/8 and has submitted that Sub-Divisional Officer while passing the impugned order, has not afforded any opportunity of hearing to the Appellant. It has been further submitted that the Sub-Divisional Officer while passing the impugned order, has neither considered the reply submitted by the Appellant nor has assigned any reasons for passing the impugned order. It has been further submitted that the Sub-Divisional Officer while passing the impugned order, has neither considered the reply submitted by the Appellant nor has assigned any reasons for passing the impugned order. While referring to Clause 14 of M.P. (Khadya Padarth) Sarvajanik Nagrik Purti Scheme, 1991, it was submitted that order of allotment of fair price shops contained in Annexure P/9 dated 27.10.2009 is abinitio-void, as the competent authority under the Scheme to allot the fair price shops is the Sub-Divisional Officer whereas, the order dated 27.10.2009 has been passed pursuant to the instructions of the Collector. 5. On the other hand, Shri Kumaresh Pathak, learned Deputy Advocate General submitted that an opportunity of hearing was afforded to the Appellant by the Sub-Divisional Officer. While referring to the order passed by the Collector, it was pointed out that even the Collector had afforded an opportunity of hearing to the Appellant and had asked the Appellant to produce the evidence. However, the Appellant did not adduce any evidence and, therefore, he cannot be permitted to complain that order has been passed in violation of principles of natural justice. 6. We have considered the submissions made by learned Counsel for the parties. 7. In exercise of powers conferred under Clause 4 of the M.P. Food Stuffs (Distribution) Control Order, 1960, the State Government has framed a scheme which is known as M.P. (Khadya Padarth) Sarvajanik Nagrik Purti Scheme, 1991. Clause 4(1) of the aforesaid Scheme provides that a fair-price shops shall be allotted at the district level by the Food Controller/Food Officer and in rest of the places by the Sub-Divisional Officer. Clause 13 of the Scheme deals with penalty. Clause 13(4) provides that before cancelling the licence granted to a fair-price shops, the Sub-Divisional Officer shall issue a show-cause notice to the concerned person and after affording an opportunity of hearing to him, shall pass an order. Clause 14 of the Scheme provides that in case any person is aggrieved by any action with regard to allotment of shops, an appeal can be preferred before the appellate Authority. 8. In the light of the aforesaid provisions of the Scheme, facts of the case may be adverted to. From perusal of order dated 9.10.2009 (Annex. P/7), we find that Sub-Divisional Officer has failed to assign any reasons for cancellation of fair price shops run by the Appellant. 8. In the light of the aforesaid provisions of the Scheme, facts of the case may be adverted to. From perusal of order dated 9.10.2009 (Annex. P/7), we find that Sub-Divisional Officer has failed to assign any reasons for cancellation of fair price shops run by the Appellant. It is well settled in Law that quasi-Judicial authority must assign reasons while passing the order. Reference in this connection can be made to the decisions of the Supreme Court reported in State Bank of Bikaner and Jaipur v. Prabhu Daya Grover (1995) 6 SCC 279 , wherein, it has been held that an order passed by the authority should disclose application of mind. Whether there was an application of mind or not can only be disclose by assigning reasons. In S.N. Mukherjee v. Union of India (1990) 4 SCC 594 , the Supreme Court has held that people must have confidence in the judicial or quasi-judicial authorities. While emphasizing the need for assigning reasons, it was held that giving of reasons minimizes the chances of arbitrariness and hence, it is an essential requirement of the rule of law. Similarly, in Secretary and Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity and Ors. (2010) 3 SCC 732 , it has been held by the Supreme Court that reason is the heartbeat of every conclusion. Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. It has further been held that recording of reasons is a principle of natural justice. It ensures transparency and fairness in decision making. 9. Besides that from perusal of order sheet (Annex. P/8) of the proceedings before the Sub-Divisional Officer, we find that the Sub-Divisional Officer did not afford any opportunity of hearing to the Appellant. The Scheme envisages pre-decisional hearing and therefore, the post-decisional hearing which was given by the Collector, as contended by learned Deputy Advocate General, cannot be a substitute for pre-decisional hearing. Therefore, the inevitable conclusion is that order Annexure P/4 dated 9.10.2009 passed by the Sub-Divisional Officer cannot be sustained in the eye of law. Accordingly, the same is quashed. 10. The Scheme envisages pre-decisional hearing and therefore, the post-decisional hearing which was given by the Collector, as contended by learned Deputy Advocate General, cannot be a substitute for pre-decisional hearing. Therefore, the inevitable conclusion is that order Annexure P/4 dated 9.10.2009 passed by the Sub-Divisional Officer cannot be sustained in the eye of law. Accordingly, the same is quashed. 10. Since, under the Scheme, the Sub-Divisional Officer is the competent authority to allot the fair-price shops and an appeal lies against the order passed by the Sub-Divisional Officer to the Collector, therefore, the order of allotment of shops passed in favour of Respondent No. 4 at the instance of Collector cannot be sustained. Accordingly, the same is also quashed. 11. The matter is remitted back to the Sub-Divisional Officer. The Sub-Divisional Officer shall afford an opportunity of hearing to the Appellant and shall pass a reasoned order. Needless to state that the Sub-Divisional Officer shall afford an opportunity of hearing to the Appellant and to adduce the evidence and shall hear Respondent No. 4 as well as the complainants. The aforesaid exercise shall be completed within a period of three months. 12. In the meanwhile, the Sub-Divisional Officer shall make an alternative arrangement for running the fair-price shops in question. 13. With the aforesaid direction, the writ appeal stands finally disposed of.