Partly allowed

The Manager, Apni Bachat Ghar Yojna v. State of Rajasthan

Rajasthan HC2 Jan 2019SAW/1291/2018

Case brief

AI extract

What is this about?

The Divisional Bench of the High Court of Rajasthan reiterates that a District Collector cannot cancel a Fair Price Shop authorisation solely on the grounds of ignoring a cooperative society's preference unless statutory conditions for cancellation are violated. It remands the matter for the shop owner to appeal or to operate temporarily.

What did the court decide?

The appellant is permitted to operate the Fair Price Shop for 1.5 months pending the decision of the appeal filed against the authorisation issued to the respondent.

The Manager, Apni Bachat Ghar Yojna Vs State of… — Service and Employment | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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D.B. Spl. Appl. Writ No. 1291/2018

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The Manager, Apni Bachat Ghar Yojna, Mahila Sahakari Samiti Ltd, Kedli, Village Kedli, Tehsil Nokha, District Bikaner Through Its Manager Mani Ram S/o Shri Kesha Ram, Aged About 42 Years, Resident Village Kedli, Post Banadhara, Tehsil Nokha, District Bikaner

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----Appellant

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Versus

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State Of Rajasthan, Through The Secretary, Food And Civil Supplies Department, Secretariat, Jaipur

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The Commissioner, Food And Civil Supplies Department, Jaipur

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The District Collector, Bikaner

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The District Collector Supply, Bikaner

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Vishna Ram S/o Shri Purna Ram, Village Kedli, Post Bandhra, Tehsil Nokha, District Bikaner

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----Respondents

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For Appellant(s) : Mr. Sushil Solanki For Respondent(s) : Mr. Mahaveer Bishnoi

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HON'BLE MR. JUSTICE SANGEET LODHA HON'BLE MR. JUSTICE DINESH MEHTA

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Judgment

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02/01/2019

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This intra court appeal is directed against order dated 17.7.18 passed by the learned Single Judge of this court whereby the writ petition preferred by the respondent no.5 questioning the legality of order dated 1.2.18 issued by the District Collector, Bikaner, cancelling the authorisation issued in his favour to

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(2 of 6)

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[SAW-1291/2018]

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operate a Fair Price Shop at village Kedali, Gram Panchayat, Bandhara, has been allowed, while giving liberty to the appellant herein to file an appeal against the order dated 14.7.16 with appropriate application seeking condonation of delay before the competent authority.

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The facts relevant are that vide advertisement dated 3.3.15 issued by the Additional Food Commissioner, Department of Food & Civil Supply, Government of Rajasthan, the applications were invited for issuing authorisation under clause 3(1) of Rajasthan Foodgrains and Other Essential Articles (Regulations of Distribution) Order, 1976 (for short “Order, 1976”) to operate vacant and newly created Fair Price Shops. The appellant and the respondent no.5 applied for allotment of the Fair Price Shop at the location Kadali, Gram Panchayat, Bandhara. On the basis of the recommendation of Allotment Advisory Committee vide order dated 14.7.16 issued by the District Collector (Supply), Bikaner, the authorisation to operate the Fair Price Shop at Kadali was issued in favour of the respondent no.5. The respondent no.5 deposited the security as directed and accordingly authorisation was issued in his favour on 19.7.16, however, he was not issued the foodgrains and other articles for supply to the residents of the area. The representation was made by the respondent no.5 but to no avail. Later, vide order dated 1.2.18 taking into consideration the fact that as per guidelines dated 17.3.16 issued by the State Government, preference was required to be given to the Cooperative Society, the appellant herein, the authorisation issued in favour of the respondent no.5 was cancelled by the District Collector (Supply), Bikaner vide order dated 1.2.18 and the authorisation was directed to be issued in favour of the appellant

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(3 of 6)

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[SAW-1291/2018]

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herein. Aggrieved by the order passed by the District Collector(Supply) as aforesaid, the respondent no.5 preferred a writ petition before this court, which stands allowed by the learned Single Judge by order under appeal.

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The learned Single Judge arrived at the finding that under the Order, 1976, the cancellation of authorisation by the District Collector (Supply) under clause 8 of Order, 1976, is permissible only in case where any provision of the Order, 1976 and condition of authorisation is contravened by an authorisation holder or his agent or servant or any other person acting on his behalf and therefore, the District Collector (Supply) was not justified in entertaining the application preferred for cancellation of authorisation issued in favour of the respondent no.5. The learned Single Judge observed that if aggrieved the appellant herein is at liberty to file an appeal against the order dated 14.7.16 with appropriate application before the competent authority.

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Learned counsel appearing for the appellant contended that admittedly, as per the guidelines while allotting the Fair Price Shop, the appellant herein was required to be given preference and thus, the order issued by the District Collector (Supply) cancelling the authorisation issued in favour of respondent no.5 is just and proper and therefore, the learned Single Judge has seriously erred in setting aside the order in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India. Learned counsel submitted that pursuant to the order dated 1.2.18, the authorisation has already been issued in favour of the appellant and pursuant thereto, the appellant is operating the Fair Price Shop since February, 2018 and therefore, it would not be

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(4 of 6)

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[SAW-1291/2018]

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appropriate to disturb the operation thereof keeping in view the larger public interest.

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On the other hand, learned counsel appearing for the respondent no.5 submitted that order issued by the District Collector (Supply) being ex facie without jurisdiction, the learned Single Judge has committed no error in setting the same while exercising extra ordinary jurisdiction under Article 226 of the Constitution of India. However, it is not disputed by the learned counsel that presently, on the strength of the authorisation issued, the appellant cooperative society is operating the Fair Price Shop in question.

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We have considered the rival submissions and perused the material on record.

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Indisputably, the authorisation in favour of the respondent no.5 was issued by the District Collector (Supply) pursuant to the recommendations made by the Allotment Advisory Committee. It is true that as per the guidelines issued, the preference is required to be given to the Cooperative Society but then the District Collector (Supply) on its own could not have reviewed its order issued pursuant to the recommendations made by the Allotment Advisory Committee. A bare perusal of clause 8 of the Order, 1976 reveals that authorisation for operating the Fair Price Shop issued is open to be cancelled by the District Collector (Supply) in case where an authorisation holder or his agent or servant or any other person acting on his behalf contravenes any of the provision of Order, 1976 or condition of authorisation and thus, the cancellation of the authorisation by the District Collector (Supply) on the ground dehors the provisions of clause 8 of Order, 1976 was unjustified and therefore, the learned Single Judge has

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(5 of 6)

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[SAW-1291/2018]

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committed no error in setting aside the order passed by the District Collector (Supply). In this view of the matter, the order passed by the learned Single Judge setting aside cancellation of authorisation issued in favour of respondent no.5, does not warrant any interference by this court by us in exercise of intra court appeal jurisdiction.

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At this stage, the learned counsel appearing for the appellant submits that the authorisation issued in favour of the respondent no.5 ignoring its preferential claim of the appellant, a cooperative society, was apparently in contravention of the guidelines issued by the State Government. It is submitted that the appellant is ready to avail the remedy of appeal available under Order, 1976 and therefore, the appellant may be granted some time to prefer the appeal and the Appellate Authority may be directed to decide the appeal within the time frame. It is submitted that till the appeal to be preferred by the appellant is decided in the larger public interest, the appellant may be permitted to operate the Fair Price Shop.

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Keeping in view, the larger public interest, the learned counsel for the respondent has not seriously opposed the limited prayer made on behalf of the appellant as aforesaid.

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Thus, keeping in view the facts and circumstances of the presence case, it is directed that if an appeal is filed by the appellant against the authorisation issued in favour of the respondent no.5 vide order dated 14.7.16 under the provisions of Order, 1976, within a period of 15 days from today before the Appellate Authority, the Appellate Authority shall decide the appeal on merits expeditiously, in any case, within a period of one month. In the larger public interest, it is further directed that subject to

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(6 of 6)

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[SAW-1291/2018]

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outcome of the appeal, the appellant shall be permitted to operate the Fair Price Shop for a period of 1 ½ months.

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The order passed by the learned Single Judge shall stand modified to the extent indicated above.

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The appeal stands disposed of accordingly.

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(DINESH MEHTA),J

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(SANGEET LODHA),J

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44-Aditya/-

The Manager, Apni Bachat Ghar Yojna v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

The Manager, Apni Bachat Ghar Yojna v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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