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Madhya Pradesh High Court · body

2012 DIGILAW 713 (MP)

Shakti Punj Mahila Bahuddesiya Sahakari v. State of Madhya Pradesh

2012-07-13

Sujoy Paul

body2012
ORDER Since common questions of law are involved in these matters, with the consent of parties, matters are heard analogously. Shri B.R. Pandey, G.A. submits that return has been filed in W.P. No.2231/12 and there is no need to file reply in all the matters. The facts are taken from W.P.No.2231/12. 2. The petitioner is a registered society. The shop was alloted to the petitioner on 27.4.2004. This shop of the petitioner was cancelled by Annexure P-1 dated 7.1.2012 without affording any opportunity to the petitioner. The order Annexue P-1 which is common in all cases reads as under:- ^^dk;kZy; vuqfoHkkxh; vf/kdkjh eqaxkoyh ftyk v'kksduxj ^^dzekad% D;w@[kk|@2012@ fnukad 07@01@12 izfr] v/;{k @ izc/akd 'kfDriaqt efgyk cgqlgdkjh laLFkk e;kZfnr xzke ckekSjh Vkdk fo"k;% e/;izns'k lkoZtfud forj.k iz.kkyh ¼fu;a=.k½ vkns'k 2009 esa eku~uh; mPp U;k;ky; tcyiqj ds vkns'k ds ikyu ckor~ A lUnHkZ% dysDVj egkns; ¼[kk|½ ds i= dzekad 1199@[kk|@2011 fnukasd 27-12-11 A eku~uh; mPPk U;k;ky; tcyiqj }kjk fiVh'ku dzekad 3487@2010 lkabZd`ik xzkeh.k izkFkfed lgdkjh miHkksDrk Hk.Mkj fo:) e-iz- 'kklu esa ikfjr vkns'k fnukad 16@12@11 }kjk e/;izns'k lkoZtfud forj.k iz.kkyh ¼fu;a=.k½ vkns'k 2009 dh df.Mdk 4] 5¼3½ ,oa 6 ds fo:) nk;j dh xbZ ;kfpdkvksa dks fujLr fd;k x;k gSA vkidh laLFkk 'kfDriqat efgyk cgq lgdkjh laLFkk e;kZfnr xzke ckekSjh Vkdk }kjk nk;j dh xbZ ;kfpdk dzekad MCY;w-ih- 3343@11 vkns'k fnukad 20@05@11] mDr vkns'k ls fujLr gks tkuds ds dkj.k vkidks vkoafVr 'kkldh; mfpr ewY; nqdku [kksjhcjh rRdky izHkko ls fujLr dh tkdj vLFkkbZ :i ls lsok lgdkjh laLFkk esa layXu dh tkrh gSaA vkns'k rRdky izHkko'khy gksxk A vuqfoHkkxh; vf/kdkjh eqaxkoyh fnukad% 07@01@12^^ 3. A bare perusal of this order shows that pursuant to some letter of Collector dated 27.12.2011, the decision has been taken to cancel the petitioners' shop. The singular reason assigned is that a writ petition bearing W.P.No.3487/10 was filed before the Principal Seat of this Court challenging the constitutional validity of Clause 4,(3) and 6 of M.P. Public Distribution System (Control) Order, 2009 (hereinafter referred as “Control Order 2009”). It is stated in the impugned order that since the said writ petition is dismissed by the High Court, the petitioners' shop is cancelled with immediate effect and it is attached to some other institution. 4. A bare perusal of the order passed by the Principal Seat shows that in that writ petition constitutional validity of aforesaid provisions of the Control Order, 2009 were called in question. 4. A bare perusal of the order passed by the Principal Seat shows that in that writ petition constitutional validity of aforesaid provisions of the Control Order, 2009 were called in question. Those provisions were held to be intra-vires by the Division bench. However, in para 15 of the judgment, the Division Bench reserved liberty to challenge the cancellation order separately. Para 15 reads as under:- “In view of the preceding analysis the impugned provisions of the Control Order, 2009 neither offend Article 14 nor Article 19(1)(g) of the Constitution of India. However, in the cases where the petitioners have challenged the order of cancellation of licence of fair price shops on merits, such petitioners would be at liberty to challenge the order of cancellation of licence of fair price shop in accordance with law. In the result, we do not find any merit in the writ petitions. The same are accordingly dismissed.” 5. The main ground of challenge of impugned order is that the shops in question were alloted to petitioners before Control Order, 2009 was brought into force. Although Annexure-II, Clause 6 provides that the shops should be alloted to particular societies, as per the contention of the petitioners this clause is not retrospective in nature. The language employed in the said Clause shows that the mandate is that in future shops are to be alloted to particular societies. Apart from this, by placing heavy reliance on Clause 15 of the Control Order, 2009, it is submitted by Shri Sanjay Bahirani that on commencement of new control order, 2009 the earlier action cannot be cancelled mechanically. He also relied on Division Bench judgment passed in W.A. No. 52/12 and a recent order of Principal Seat in W.P. No. 7091/12 (Prakash Vs. State of M.P. & Others). 6. Per contra, Shri B. Raj Pandey, learned Govt. Advocate supported the order and relied on the operative portion of the order passed in W.A.No.52/12 wherein while quashing the order, opportunity was reserved to the respondents to take action against the societies which were alloted after coming into force of Control Order, 2009 or where there are other grounds available under the 1991 Scheme to cancel the fair price shops. 7. I have bestowed my anxious consideration on the rival contention of the parties and perused the record. 8. 7. I have bestowed my anxious consideration on the rival contention of the parties and perused the record. 8. It is profitable to quote Clause 6 of Annexure-II of the Control Order which reads as under:- “(6). Fair price shops in rural areas shall be allotted to primary agricultural co-operative, societies and laghu vanopaj sahakari societies registered under the Madhya Pradesh Co-operative Societies Act, 1960. the societies should have a credit limit amounting to 200% more than purchasing, amount or credit needed for monthly allocation (foodgrain, kerosene, sugar) alongwith sufficient storage space and computer for date entry and accounting purposes. The societies shall run the shops themselves and not operate through any agent or any private person.” 9. A bare perusal of the language shows that this is a mandate for the administration to allot in a particular manner and to particular societies. Needless to mention that this mandate as per the language used has to be read as prospective in nature. There exists no provision in the Control Order, 2009 which permits the respondents to cancel the earlier allotments which were issued prior to commencement of 2009 Control Order. Clause 15 reads as under:- “15. Repeal and Saving.-The Madhya Pradesh Foodstuff (Distribution and Control) Order, 1960 and the Madhya Pradesh Khadyapadarth (Sarvajnik Nagrik Poorti Vitran) Scheme, 1991 are hereby repealed: Provided that the repeal shall not affect,- (a) any right, privilege, obligation or liability acquired, accrued or incurred under the order and scheme so repealed; (b) the previous operation or the order and scheme so repealed or consequences of anything already done or suffered thereunder.” 10. A bare perusal of the repeal and saving clause aforesaid makes it crystal clear that the right, privilege/obligation and liability acquired and accrued were specifically saved. This is settled legal principle of interpretation that statute has to be read in entirety. The intention of Legislature and the context in which Clause 15 was brought in the statute book makes it crystal clear that the earlier rights and privileges are not sought to be disturbed on commencement of 2009 Control Order. A Division Bench of this Court has considered this aspect in W.A. No. 52/12. The intention of Legislature and the context in which Clause 15 was brought in the statute book makes it crystal clear that the earlier rights and privileges are not sought to be disturbed on commencement of 2009 Control Order. A Division Bench of this Court has considered this aspect in W.A. No. 52/12. After examining the aforesaid provision, the Division Bench opined in para 7 that right of appellant in regard to licence to run fair price shop under the scheme of 1991 is a valid right and because of saving clause this right is saved. Even after coming into force of Control Order, 2009, the right of the appellant to continue to run the fair price shop has not been taken away completely. Accordingly, the Division Bench held that the cancellation of fair price shop of the appellant is not proper. However, liberty is reserved to the Collector to verify the fact that whether the fair price shop was alloted to the appellant after coming into force of the Control Order, 2009 or under the Scheme of 1991 there were other grounds to cancel the allotment of fair price shop of the appellant. 11. The Principal Seat in Prarkash (supra) followed the order passed by the Division Bench in W.A. No. 52/12 and gave liberty to the Collector to proceed with the matter as per the liberty reserved in para 7 of the judgment passed in W.A. No. 52/12. I am bound by the orders of W.A. No. 52/12 and W.P.No.7091/12. Consequently, since the question involved in this matter is no more res-integra, by following the ratio of those judgments, I am of the considered opinion that the action of the respondents in passing the order cannot be upheld. The petitioners' shop cannot be cancelled mechanically on the ground that Control Order, 2009 came into being and certain clauses of these orders were declared intra-vires by the High Court. As per saving clause, the action of the respondents cannot be upheld. Consequently, the impugned order Annexure P-1 dated 7.1.2012 is set aside. However, liberty is reserved to the respondents to proceed in the matter in accordance with stipulation and directions contained in para 7 of the order dated 7.2.2012 passed in W.A.No.52/12 and in other cases.