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Allahabad High Court · body

2021 DIGILAW 429 (ALL)

Mamta Devi v. State of U. P.

2021-03-19

VIVEK KUMAR BIRLA

body2021
JUDGMENT : 1. Heard learned counsel for the petitioner as well as learned Standing Counsel appearing for the State respondents and perused the record. 2. Present petition has been filed challenging the impugned order dated 28.2.2020 passed by the respondent no. 2-District Supply Officer, Etawah whereby fair price shop of the petitioner has been cancelled. 3. The Stamp Reporter has reported laches of 208 days in challenging the impugned order. 4. It was submitted by learned counsel for the petitioner is that the petitioner had earlier approached this Court by filing a writ petition being Writ-C No. 17151 of 2020 (Mamta Devi vs. State of UP and another), which was dismissed with liberty to file fresh petition vide order dated 7.12.2020. By drawing attention to the Government Orders dated 13.4.2017 and 6.9.2018, it was submitted that the District Supply Officer is required to obtain approval from the District Magistrate before passing the impugned order. It was submitted that the order of suspension and cancellation can be passed by him only after obtaining permission from the District Magistrate. By drawing attention to Government Order dated 6.9.2018, it was submitted that in paragraph 3 (i) it has been provided that the Sub Divisional Officer can inspect the shop but for suspension/cancellation of the fair price shop he is required to submit his report to the District Magistrate and the District Magistrate may obtain opinion from the District Supply Officer. Submission, therefore, is that the order passed by the District Supply Officer without taking permission from the District Magistrate is without jurisdiction. Attention was also drawn to paragraphs 7 and 17 of the judgement of this Court passed in Writ-C No. 56555 of 2017 (Surendra Yadav vs. State of UP and 2 others) decided on 1.10.2018 wherein in paragraph 7, the Government Order dated 13.4.2017 has been considered and it was noticed that it could not be pointed out by the learned Standing Counsel that before passing the order of suspension the District Supply Officer had obtained written permission from the District Magistrate and therefore, it was held that suspension order cannot be sustained. 5. Per contra, placing reliance on paragraph 2(1) of Government Order dated 5.8.2019 it was submitted by the learned Standing Counsel that the District Supply Officer has overall jurisdiction both urban and rural and can pass orders including suspension and cancellation. 5. Per contra, placing reliance on paragraph 2(1) of Government Order dated 5.8.2019 it was submitted by the learned Standing Counsel that the District Supply Officer has overall jurisdiction both urban and rural and can pass orders including suspension and cancellation. He submits that powers of Sub Divisional Officer were separately defined and therefore, the District Supply Officer has the jurisdiction over the entire district and for passing such orders he is not required to take any permission from the District Magistrate and it is only the Sub Divisional Officer, who has jurisdiction in rural area that too in his Tehsil, is required to take written approval from the District Magistrate. 6. I have considered the rival submissions and perused the record. 7. For ready reference, paragraph 2(i) of the Government Order dated 5.8.2019 is quoted as under: ^^2- mfpr nj nqdkuksa ds fo:) dk;Zokgh%& ¼1½ ftyk iwfrZ vf/kdkjh dks lEiw.kZ ftys ds ¼ftlesa uxjh; ,oa xzkeh.k nksuksa {ks= lfEefyr gksaxs½ yf{kr tu forj.k Á.kkyh ds lHkh nqdkuksa ds fujh{k.k rFkk muds fo:) n.MkRed dk;Zokgh ¼fuyEcu@fujLrhdj.k vkfn½ djus dk vf/kdkj gksxkA xzkeh.k {ks= esa mi&ftykf/kdkjh vius rglhy vUrxZr lHkh nqdkuksa dk fujh{k.k rks dj ldsaxs] fdUrq foØsrkvksa ds fo:) n.MkRed ¼fuyEcu@fujLrhdj.k ,oa cgkyh½ dk;Zokgh gsrq viuh vk[;k ftykf/kdkjh dks Ásf"kr djsaxsA ftykf/kdkjh }kjk vko';drkuqlkj lEcfU/kr Ádj.k esa ftyk iwfRkZ vf/kdkjh ls foHkkxh; vfHker ÁkIr fd;k tk;sxkA ftykf/kdkjh dk fyf[kr vkns'k ÁkIr gksus ds mijkUr mi&ftykf/kdkjh }kjk foØsrkvksa ds fo:) n.MkRed ¼fuyEcu@fujLrhdj.k ,oa cgkyh½ dh dk;Zokgh djrs gq,] Á'uxr nqdku dh fLFkfr ds lEcU/k esa vkWuykbu Áfof"V vafdr dh tk;sxhA mi&ftykf/kdkjh }kjk Ádj.k esa d`r dk;Zokgh dh ,d Áfr ftyk iwfrZ dk;kZy; dks vfuok;Z rkSj ij miyC/k djk;h tk;sxh] rkfd mfpr nj foØsrkvksa ds dk;Zjr gksus dh fLFkfr dks v|ru fd;k tk ldsA** (Emphasis supplied) 8. It is not in dispute that the order has been passed by the District Supply Officer, Etawah. In Surendra Yadav (supra), Government Order dated 13.4.2017 only has been considered. However, in the case of Arjun vs. State of UP and others, 2018 (10) ADJ 450 after considering joint reading of Government orders dated 17.8.2002, 30.9.2004 and 13.4.2017 this Court held that the District Supply Officer is competent to pass such orders, paragraphs 1, 2, 3, 4, 6 and 7 whereof are quoted as under: “1. The instant writ petition challenges the order of cancellation dated 14.8.2017. The instant writ petition challenges the order of cancellation dated 14.8.2017. Initially the writ petition was entertained as there was a confusion as to whether the District Supply Officer could have passed the impugned order. Today the learned Standing Counsel has produced the Government Order dated 17.8.2002 and has relied on Clause -12 which is being been reproduced herein under: ^^ftykiwfrZ vf/kdkjh dks ;g vf/kdkj gksxk fd xzkeh.k {ks= dh nqdkuksa dk fujh{k.k rFkk vfu;ferrk ik;s tkus ij nqdkunkjksa ds fo:) n.MkRed dk;Zokgh dj ldrs gSA** 2. It shows that District Supply Officer had the authority to inspect and take disciplinary action against all fair price shops in the vllages. 3. The learned Standing Counsel further placed reliance on a Government Order dated 30.9.2004 which is also being reproduced herein under: ^^[kk| rFkk jln vuqHkkx&5 y[kuÅ% fnukad 30 flrEcj] 2004 fo"k;%& xzkeh.k rFkk 'kgjh {ks=ksa dh mfpr nj dh nqdkuksa ds p;u] fuyEcu@fujL=hdj.k ,oa lEc)hdj.k ds lEcU/k esa ÁfØ;k dk fu/kkZj.kA egksn;] ¼1½ mi;qZDr fo"k;d 'kklukns'k la[;k 2714@29-6-2002&162 lkŒ@2001] fnukad 17 vxLr] 2002] la[;k 2715@29-6-2002&162 lkŒ@2001] fnukad 17 vxLr] 2002] la[;k 3577@29-6-2003 ¼113½@03] fnukad 22-10-2003 ,oa l[;k 2260@29-6-2004&300 lkŒ@2003] fnukad] 29 tqykbZ] 2004 rFkk le;≤ ij tkjh vU; 'kklukns'kksa dh d`i;k lanHkZ xzg.k djsaA ¼2½ fofHkUu ftyksa }kjk 'kklu ls xzkeh.k {ks= ,oa 'kgjh {ks= esa mfpr nj nqdkuksa ds n.MkRed dk;Zokgh ¼fuyEcu@fujLrhdj.k vkfn½ ds vf/kdkj dh fLFkfr Li"V djus ds lEcU/k esa ekxZn'kZu dh vis{kk dh x;h gSA mDr ds ifjÁs{; esa eq>ls ;g dgus dh vis{kk dh x;h gS fd ftykf/kdkjh rFkk ftykiwfrZ vf/kdkjh dks lEiw.kZ ftys ds ¼ftlesa uxjh; ,oa xzkeh.k nksuksa {ks= lfEefyr gksaxs½ yf{kr tu forj.k Á.kkyh ds lHkh nqdkuksa ds fujh{k.k rFkk muds fo:) n.MkRed dk;Zokgh ¼fuyEcu@fujLrhdj.k vkfn½ djus dk vf/kdkj gksxkA mi&ftykf/kdkjh dks vius rglhy esa fLFkr lHkh nqdkuksa ds fujh{k.k rFkk muds fo:) n.MkRed dk;Zokgh ¼fuyEcu@fujLrhdj.k vkfn½ djus dk vf/kdkj ;Fkkor~ jgsxkA ¼3½ mijksDr 'kklukns'k mDr lhek rd la'kksf/kr le>s tk;sA** 4. It shows a further authority had been vested in the Sub-divisional Officer to take action against the fair price shop dealers. It shows a further authority had been vested in the Sub-divisional Officer to take action against the fair price shop dealers. Thereafter, the learned Standing Counsel drew the attention of the Court to the Government Order dated 13.4.2017 which is being reproduced herein under: ^^fo"k;%& xzkeh.k ,oa 'kgjh {ks=ksa dh mfpr nj dh nqdkuksa ds p;u] fuyEcu@fujLrhdj.k ,oa lEc)hdj.k ds lEcU/k esa ÁfØ;k dk fu/kkZj.kA egksn;] ¼1½ mi;qZDr fo"k;d 'kklukns'k la[;k 3126@29-6-2004&300 lkŒ@03 Vhlh] fnukad 30-09-2004 dk d`i;k lUnHkZ xzg.k djus dk d"V djsa] ftlesa lkoZtfud forj.k Á.kkyh dh lHkh nqdkuksa ds fujh{k.k vkSj muds fo:) n.MkRed ¼fuyEcu@fujLrhdj.k½ dk;Zokgh dk vf/kdkj ftykf/kdkjh@ftyk iwfrZ vf/kdkjh dks Hkh Ánku fd;k x;k gSA fofHkUu lzksrksa ls 'kklu ds laKku esa ;g ckr yk;h tk jgh gS fd ,d gh fcUnq ij dk;Zokgh ftyk iwfrZ vf/kdkjh@mi&ftykf/kdkjh vFkok ftykf/kdkjh dks dk;Zokgh dk vf/kdkj Ánku dj fn;k x;k gS] tcfd lkoZtfud forj.k Á.kkyh ds lqpk: lapkyu dk nkf;Ro lEcfU/kr ftykf/kdkfj;ksa dks lkSaik x;k gSA ¼2½ vr% mDr 'kklukns'k esa vkaf'kd la'kks/ku djrs gq, bl lEcU/k esa eq>s ;g dgus dk funs'k gqvk gS fd mi&ftykf/kdkjh vius rglhy esa fLFkfr lHkh nqdkuksa dk fujh{k.k rks dj ldrs gSa] fdUrq muds fo:) n.MkRed ¼fuyEcu@fujLrhdj.k½ ,oa cgky dh dk;Zokgh ftyk iwfrZ vf/kdkjh ds ek/;e ls i=koyh ij ftykf/kdkjh dh fyf[kr vuqefr ÁkIr djus ds mijkUr gh djsaxsA ¼3½ mDr 'kklukns'k fnukad 30-09-2004 dks bl lhek rd la'kksf/kr le>k tk;A** 6. It has been provided in this Government Order that the records of the case would go to the District Magistrate through the District Supply Officer. A joint reading of the three Government Orders dated 17.8.2002, 30.9.2004 and 13.4.2017 makes it clear that the District Supply Officer has, in a given district, powers to take action against the fair price shop dealers. Additionally, the Sub-divisional Officer has also been given powers under the Government Order dated 30.9.2004 but the same has been curtailed by the Government Order dated 13.4.2017 and the Sub-divisional Officer, though can take action, can do so only after the approval of the District Magistrate. 7. Under such circumstances, the impugned order which has been passed by the District Supply Officer could have very well been passed by him. It was well within the jurisdiction of the District Supply Officer to pass the orders.” (Emphasis supplied) 9. 7. Under such circumstances, the impugned order which has been passed by the District Supply Officer could have very well been passed by him. It was well within the jurisdiction of the District Supply Officer to pass the orders.” (Emphasis supplied) 9. A reference may also be made to the definition of competent authority as provided in clause 2 (j) and clause 8 (7) of the Uttar Pradesh Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016 (hereinafter referred to the 'Control Order, 2016'), which are quoted as under: “2. Definitions.- (a) ….. (j) “Competent Authority” means Collector and includes Additional District Magistrate (Civil supplies), District Supply Officer and Sub Divisional Magistrate or Area Rationing Officer; 8. Operation of fair price shops. (1) …. (7) The Competent Authority shall take prompt action in respect of violation of any condition of license including any irregularity committed by the fair price shop owner, which may include suspension or cancellation of the fair price shop owner's license.” (Emphasis supplied) 10. Clearly, the District Supply Officer is also the Competent Authority as provided in the Control Order, 2016. Clause 8 (7) of the Control Order, 2016 clearly provides that Competent Authority shall take prompt action in respect of violation of any condition of license including any irregularity committed by the fair price shop owner, which may include suspension or cancellation of the fair price shop licence. It is, therefore, clear that the District Supply Officer is the competent officer to take prompt action under Clause 8 (7) of the Control Order, 2016. Now this position has been clarified in categorical terms by paragraph 2 (I) of the Government Order dated 5.8.2019 quoted above, which clearly provides that the District Supply Officer has overall jurisdiction over the entire district, which include both, the urban and the rural area. It is only in respect of the powers to be exercised by the Sub Divisional Officer in respect of shops situated in the rural area falling in his Tehsil, before passing the order of suspension or cancellation he is required to submit his report to the District Magistrate, who, in turn, if so desire, may seek opinion of the District Supply Officer and it is after obtaining the written approval from the District Magistrate, the Sub Divisional Officer can pass the orders. Thus, it is clear that the powers of District Supply Officer to pass suspension and cancellation order in the given entire district are unfettered and he is not required to take prior approval of the District Magistrate as is in the case of Sub Divisional Officer, whose jurisdiction is limited to the shops situated in the rural area in his Tehsil only. 11. In Surendra Yadav (supra) decided on 1.10.2018 judgement of Arjun (supra) decided on 1.12.2017 has not been considered. 12. In any case, in the Government Order dated 5.8.2019 the authority, jurisdiction and competence of the District Supply Officer has been clarified in absolute terms to the effect that he has jurisdiction to pass order of suspension or cancellation in respect of the entire given district. 13. In such view of the matter, I do not find any force in the argument of learned counsel for the petitioner that the order passed by the District Supply Officer is without jurisdiction. 14. On this count, this petition is devoid of merit and is accordingly dismissed. No other grounds are pressed before this Court. 15. The petitioner is, however, at liberty to challenge the order by filing statutory appeal, if he so desires. 16. No order as to costs.