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2016 DIGILAW 637 (ALL)

Daya Ram Patel v. State of U. P.

2016-02-22

RAN VIJAI SINGH

body2016
JUDGMENT Ran Vijai Singh, J. Heard Sri K.S. Rathor, learned counsel for the petitioner and learned Standing Counsel appearing for the State respondents. 2. Through this writ petition, prayer has been made to issue a writ of certiorari quashing the orders dated 2.11.2015 passed by the Divisional Commissioner Mirzapur Division Mirzapur in Appeal No. C2015160000510 (Daya Ram Patel v. State of U.P. and others), order dated 30.5.2015, (the decision taken by the Committee) as well as the order dated 1/3.6.2015 passed by the Sub-Divisional Officer, Aurai. 3. Vide order dated 2.11.2015, the Divisional Commissioner has dismissed the appeal of the petitioner filed under Clause 28 of U.P. Scheduled Commodities Distribution Order, 2004 as not maintainable. Vide order dated 30.5.2015, the Committee, constituted under the advertisement, has made recommendation for allotment of the fair price shop in favour of the respondent no. 4 and vide order dated 3.6.2015, the respondent no. 4 has been communicated to lift the scheduled commodities. 4. The petitioner happened to be applicant for allotment of a fair price shop of Village Dalapur, Block Bhadohi Tehsil Aurai. Initially an open meeting was held on 28.2.2015 in which the petitioner secured 409 votes and Sher Ali had secured 105 votes. The matter was referred to the Block Development Officer. The Block Development Officer has referred the matter to the Sub-Divisional Officer and the Sub-Divisional Officer, Aurai has cancelled the entire proceeding for the reason that the meeting was not properly held as there was a chaos. 5. However, later on in a suo motu proceeding, a press note was published on 14.5.2015 inviting the applications for allotment of fair price shop fixing 25.5.2015. He also constituted four members committee for the said purpose. It is submitted that the petitioner has applied for the same but the Committee without assigning any reason vide order dated 30.5.2015 has recommended the allotment in favour of the respondent no. 4 and thereafter the respondent no. 3 has given permission to the respondent no. 4 to lift the scheduled commodities. 6. It is submitted that the petitioner has applied for the same but the Committee without assigning any reason vide order dated 30.5.2015 has recommended the allotment in favour of the respondent no. 4 and thereafter the respondent no. 3 has given permission to the respondent no. 4 to lift the scheduled commodities. 6. Aggrieved petitioner has filed Writ-C No. 35542 of 2015 (Dayaram Patel v. State of U.P. and others), which was disposed of on 24th June, 2015 with the following order: This writ petition seeks the quashing of the orders dated 30 May 2015, 1 June 2015 and 3 June 2015 passed by the Sub Divisional Officer for allotment of a fair price shop in favour of private respondent no. 7. Number of submissions have been raised by the learned counsel for the petitioner to assail the said orders but learned Standing Counsel appearing for the respondents has pointed out that in terms of Clause 11 of the Government Order dated 3 July 1990, the petitioner can approach the Commissioner of the Division. Learned counsel has also pointed out that the said Government Order stands saved even after the implementation of the U.P. Scheduled Commodities Distribution Order, 2004 as there is nothing inconsistent with the provisions of the aforesaid Government Order. Inasmuch as the petitioner has an alternative remedy of approaching the Commissioner of the Division, we decline to entertain this writ petition. The writ petition is, accordingly, dismissed. 7. Pursuant thereto, the petitioner, herein has filed appeal before the Divisional Commissioner, which has been dismissed holding it to be not maintainable under Sub Clause (3) of Clause 28 of the Order,2004 on the ground that under Clause 28 only fair price shop agent can prefer the appeal and the petitioner is not fair price shop agent but while doing so, the order passed by this Court dated 24.6.2015, has not been taken into consideration by the Divisional Commissioner, by which the petitioner was relegated to avail remedy of appeal on the strength of condition no. 11 given in the Government order dated 3.7.1990 which is the backbone for the purpose of allotment/suspension/cancellation of the fair price shops. The Government order dated 3.7.1990 has although been modified from time to time but this condition is remained intact. The item no. 11 given in the Government order dated 3.7.1990 which is the backbone for the purpose of allotment/suspension/cancellation of the fair price shops. The Government order dated 3.7.1990 has although been modified from time to time but this condition is remained intact. The item no. 11 of the aforesaid Government order is reproduced herein under : - ^^11 ftykf/kdkjh }kjk nqdku fu;qfDr@fuyacu@fujLrhdj.k@uohuhdj.k u djus laca/kh ikfjr vkns'k ds fo: ) vihy lacaf/kr e.Myk;qDr ds le{k izLrqr dh tk,xhA bu ekeyksa esa f}rh; vihy dh O;oLFkk ugha gksxhA** 8. From the perusal of the aforesaid condition, it is apparent that any person aggrieved by the appointment of fair price shop agent can prefer appeal under item no. 11 of the Government order dated 3.7.1990. The U.P. Scheduled Commodities Distribution Order, 2004 under which appeal was filed operates in different fields. It does not talk about the manner and procedure under which the fair price shop agent is appointed. The functioning of the Control Order starts only after the appointment of fair price shop agent. The fair price shop agents are being appointed pursuant to the Government order dated 3.7.1990 issued under Section 3 of U.P. Essential Commodities Act,1955 under which the State Government has power to issue such orders as may be fit for such purpose. It may be noticed that under Clause 28 of U.P. Scheduled Commodities Distribution Order, 2004, the Divisional Commissioner/Additional Commissioner to whom power is delegated happens to be appellate authority and under item no. 11 of the Government order dated 3.7.1990, referred herein above, too the Divisional Commissioner happens to be appellate authority, therefore the power of adjudication of appeal either against an order appointing fair price shop agent under Government order dated 3.7.1990 or an order passed suspending/cancelling the agreement of the fair price shop agent, the Commissioner happens to be competent authority to adjudicate upon the appeals. In this backdrop, it has to be examined that when the authority is vested with the power to adjudicate upon the matter and somebody approaches the authority for redressal of his grievance either against the appointment or against the order of cancellation/suspension of agreement of fair price shop agent whether that person can be non-suited on account of the fact that he has approached the appellate authority by quoting the wrong provisions. 9. The Apex Court in Kishun Singh & Ors. 9. The Apex Court in Kishun Singh & Ors. v. State of Bihar (1993) 2 SCC 16 (vide para 17), has observed as under : - "It is well settled that once it is found that the power exists the exercise of power under a wrong provision will not render the order illegal or invalid." 10. The Apex Court in Municipal Corporation of the City of Ahmedabad v. Ben Hiraben Manilal (1983) 2 SCC 422 (vide para 5) held that : - "It is well settled that the exercise of a power, if there is indeed a power, will be referable to a jurisdiction, when the validity of the exercise of that power is in issue, which confers validity upon it and not to a jurisdiction under which it would be nugatory, though the section was not referred, and a different or a wrong section of different provisions was mentioned. See in this connection the observations in Pitamber Vajirshet v. Dhondu Navlapa. See in this connection also the observations of this Court in the case of L. Hazari Mal Kuthiala v. I.T.O., Special Circle, Amabala Cantt., ( AIR 1961 SC 200 ). This point has again been reiterated by this Court in the case of Hukumchand Mills Ltd. v. State of M.P., ( AIR 1964 SC 1329 ) where it was observed that it was well-settled that a wrong reference to the power under which action was taken by the Government would not per se vitiate that action if it could be justified under some other power under which Government could lawfully do that act. See also the observations of the Supreme Court in the case of Nani Gopal Biswas v. Municipality of Howrah, AIR 1958 SC 141 ." 11. In Roche Products Limited v. Collector of Customs and Another 1989 Supp. (2) SCC 532 (vide para 24) the Apex Court observed: - "When an authority has the power to do a certain Act and in exercise of such power he does the same, but refers to a wrong provision of the law, that would be a mere irregularity and would not vitiate such act." 12. (2) SCC 532 (vide para 24) the Apex Court observed: - "When an authority has the power to do a certain Act and in exercise of such power he does the same, but refers to a wrong provision of the law, that would be a mere irregularity and would not vitiate such act." 12. The same view has been taken by the Constitution Bench of the Supreme Court in Union of India & Another v. Tulsi Ram Patel 1985 3 SCC 398 (vide para 126) where the Supreme Court observed: - “Further, even the mention of a wrong provision or the omission to mention the provision which contains the source of power will not invalidate an order where the source of such power exists. (See Dr. Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740 andMunicipal Corporation of the City of Ahmedabad v. Ben Hiraben Manilal, AIR 1983 SC 537 ) supra". 13. In view of foregoing discussions, in my considered opinion, the Divisional Commissioner has erred in dismissing the appeal holding it to be not maintainable. In the result, the writ petition succeeds and is allowed. The order dated 2.11.2015 passed by the Divisional Commissioner Mirzapur Division Mirzapur in Appeal No. C2015160000510 (Daya Ram Patel v. State of U.P. and others) is hereby quashed. The Divisional Commissioner Mirzapur Division Mirzapur is directed to pass a fresh order on the petitioner's appeal in accordance with law after hearing all concerned expeditiously but not later than four months from the date of receipt of certified copy of the order of this Court. Appeal allowed.