/ PETITIONER v RESPON DENTS Vetsus / 1) 4) Krishna Promik Sohokcri ‘ Upbhok1o Bhondor (A Cooperafive Society. duly registered under the Chhdrrisgorh Coopereorive Societies, Ac’r i960) having iis Registration No. 2384 through its President, Dilip Kumblekdr S/o Shri Rom Kurnbeikcrr: Aged about 35 years, R/o New Rajendra Nogar, Rdipur, District— Raipur (CG). State of Chhottisgdrh Through the Secretary, Department of Food, Civil Supplies & Consumers Protection, DKS Bhowon, Rdipur, District— Rdipur (CG) 2)/ The Collector, Roipur, District— Raipur (CG). The Food Controller, Rdipur, District—Raipur (CG); Food lnspector, Rdipur, District— Roipur (CG) PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA IN THE HIGH COURT OF JUDICATURE CHHATTISGARH AT BILASPUR w.P.(C)No. €32 [200% m ,RIT 9 l HIGH COURT OF CHHATTISGARH BILASPUR ingle Bench: Hon’ble Shri Manindra Mohan Shrivastava, J. ( Krishna Prathmik Sahakari Upbhokta Bhandar Vers us State of Chhattisgarh and Others (Writ etition un Article 22 of the Constitution of ndia) P der 7 I Present: - Shri Varun Sharma, counsel for the petoner. iti Shri Ajay Dwivedi, Depy ut Govt. Advocate for the State/respondts. en ORAL ORDER (Passed on 28-02—21) This petition is directed against the orders datd 7-09-2006(nexure P- .6), 14-12-2006(Annexure P-8) and 22-10-2007(Annexure P-9) passd b the respondent authorities whereby license of the petitioner-Sociey was suspended and by othe two orde, the appeal preferred the petitioner—Society before the tCollector, Raipur and also before the State Government was dismissed upholding the order dated 07-09-2006 passed by the Food Controller, Raipur. 2. Facts necessary for decision of the instant petition are that the petitioner was allotted a fair price shop for distribution of essential commodities. Alleging certain irregularities in the operation of the fair price shop, a show cause notice was issued to the petitioner on 05-04-2006 (Annexure P—3). The petitioner submitted reply to the said show cause notice. Thereafter, the competent authority, namely Food Controller, vide its order dated 07-09-2006 (Annexure P- F‘ 6) cancelled the allotment of the petitioner by recording a finding that the J . petitioner has been found guilty of contravention of Clause 11(5), 13(2) and 15 of the Chhattisgarh Public Distribution System (Control) Order, 2004 (In short “Order of 2004"). Aggrieved by the order of penalty and cancellation of allotment, S Writ Petition__Civil) No.539l2008 Petitioner Respondents 01 e 0An e y t r rs by r the petitioner preferred statutory appeal before the Collector, which was dismissed vide order dated 14-12—2006 affirming the order of cancellation. Thereafter, the petitioner went up in appeal before the State Government and the State Government also vide order 22-10-2007 dismissed the appeal affirming the order passed by the Sub—ordinate authorities.- 3. Assailing the correctness and validity of the entire proceedings of cancellation of allotment of fair price shop, learned counsel for the petitioner made following submissions:- . (A) That in the present case, there has been violation of mandatory provisions contained in Clause 16 of the Order of 2004 inasmuch as no communication at all was made by the Inspecting Officer to the Deputy Registrar/Assistant Registrar, Cooperative Societies. Therefore, the action of the respondent authority is in violation of the statutory mandate. Reliance has been placed on order dated 02-07—2008 passed by this Court in Writ Petition (C) No.2078 of a. 2008. i (B) That the allegation regarding taking more than the approved and fixed rate is highly perverse inasmuch as the rate Rs.8.94 Paisa per liter would require the society to return 12 Paisa, on every transaction of sale to the ration card holders who is entitled to two liters of Kerosene. As there is no currency to effect return of 12 Paisa on sale of every two liters of kerosene, the petitioner had been keeping in deposit the excess money paid by the purchaser and entry to that effect used to be made in the ration card which was to be adjusted in future. lt is submitted that this is in fact not an irregularity at all but merely an arrangementtherefore, ; action of cancellation of allotment of fair price shop on such an arrangement is i not at all proportionate to the alleged ground of violation (C) That in the reply to the show cause notice it was very clearly stated that the register and other records could not be made available for inspection of the \t \‘r t 7‘ 1v ‘3” é >(L{ Inspecting Officer as the same we're deposited for the purpose of Audit with the Accountant of the Society. Though, this ground was specifically raised, no cogent reasons have been ssigned by the authority to reject such a defence put forth by the petitioner in‘specific terms. He further submitted that in fact, the Register of month of the March was available ut the Registers of previous months re not availae, thereforeLon that basi, such an etree and drastic step of cancellation of fair pric shop could not be taken. e 4. On the other hand, submission of learnd counsel for the State is that in so far s first subssion egarding alleged non—compliance of Clause 16(4) of Order of 2004 is conceed, th is being raised for the first time before this Cout rn at r and there are no factual pleadin to support such a contention. He submits that g neither in the reply to the show cause notie no in the memo of appeal befor the appellate authority, this ground was ever raised. He submits that there are no spefic pleading with regard to such allegation of fact tht the Inspecting Authority d not communicate the inection rert to the Deputy Kegistrr/Assistant Registrar of the Co-operative Society. It is next contende by learned ounsel fr the State is tt the rates having been ixed and it was obligatory on th part of the petitioner to comply with the provisions of Order o 2004 and no amount of justification for extracting higher ount ould absolve the petitioner and once contravention is establish, action could be taken. In reply to third submission oflearned counsel for the petitioner, it has been ‘’ . . submitted on behalf of the State that the petitioner-society placed an after } thought ground in the reply to show cause notice. It was submitted that it was the burden of the petitioner to satisfy the authority that the records were submitted for audit with the Accountant. He then submits that the petitioner did not lead any r " evidence nor submitted any affidavit or any other material to establish that at the time, date and place of inspection, records of previous months could not be a b we bl s xm , e a mi r E"T”"—I ju‘ A c r e ci a di sp po / Ra d c o ha f e f am w ed {3 vsft” s}f( made available as it was lying with the Accountan} of the Society. It is furiher submitted that the justification in this regard given by' the petitioner is clearly vague, and therefore, the Food Controller and the appellate authorities were fully justified in rejecting such a ground. 5. In so far as first submission regarding violation of Clause 16(4) of Order of 2004 is Concerned, i find that neither in the reply to the show cause notice nor in the memo of appeal submitted before the Collector nor anywhere in piea‘ding before this Court, any such specific ground based on factual pleading has been taken. ln the memo of appeal, the petitioner has stated in Para 6 that Clause 16(4) of Order of 2004 has been violated as in the order of Food Controller, there is no reference of the opinion of the Deputy Registrar/Assistant Registrar. That would not amount to raising of plea that the inspecting authority did not communicate its report to the Deputy Registrar/Assistant Registrar. Clause 16(4) of Order of 2004, firstly requires the Inspecting Officer to communicate irregularities to the Deputy Registrar/Assistant Registrar. Thereafter, the provision obliges the Deputy Registrar/Assistant Registrar to send its report within 15 days to officer designated for allotment of Fair Price Shop. lt further provides that if the Deputy Registrar/Assistant Registrar, Cooperative Societies does not submit his report within 15 days then it will be presumed that the consent of Deputy Registrar/Assistant Registrar, Cooperative societies is favourable and proposed action can be completed. Therefore, the provision itself provides that even in case of irregularities communicated and if the concerned authority does not send its approval within the time stipulated, the competent Lat j authority may proceed with the matter ‘ assuming that consent of Deputy f Registrar/Assistant Registrar is favourable. Therefore, the first part of Clause 16 which requires communication of the irregularities by the inspecting Authority to the Deputy Registrar/Assistant Registrar appears-to be mandatory in nature. The >¢ i second part of the Clause shows that even in case, opinion is not sent, the competent authority may proceed with the matter indicates directory nature of the provision. Even in the order passed by the Food Controller, it is not mentioned regarding any opinion of Deputy Registrar/Assistant Registrar and in the absence of specific allegation of fact made by the petitioner, it cannot be presumed that the Inspecting Authority failed to communicate the irregularities to the Deputy Registrar/Assistant Registrar, Cooperative societies. Therefore, the submission, z which is now being raised by learned counsel for the petitioner is without any factual foundation led either in the reply to show cause notice or in the memo of appeal or even in the pleadings before this Court, deserves to be rejected. 6. Even if it is assumed for the sake of argument that the first irregularity relating to recovery of more money than the fixed rate had some justification, it is difficult to accept the submission of learned counsel for the petitioner that second irregularity was not proved. ln the show cause notice, it is very specifically stated that at the time of inspection of relevant records and Stock Register of months previous to March 2006 were not available. ln his reply to the said notice, the petitioner stated that as the physical verification is required to be done by the Cooperative department after 31“ of March, therefore, the current re‘cords were given to the Accountant of the Society fOr updating; hence, it could not be made available. lt is to be noted that the petitioner had submitted its reply on 24-04- 2006. During this period, the petitioner did not make any attempt to submit the records. lf that was the reason for non-production of the records at the time of inspection made, nothing prevented the petitioner to immediately place before the Inspecting Authority or some other authority or before the Food Controller the relevant stock register which was not produced at the time of inspection. Mere submission is not sufficient. No other material either in the form of affidavit of the ‘ Accountant was submitted by the petitioner-society to substantiate this ground. v. “an 99* No such ground was taken in the petiticn that the society wanted to lead oral evidence which was not permitted. Therefore‘ if such a bald submission made in the reply to show cause notice, has been rejected by the Food Controller, it cannot be said to be perverse or irrational as to warrant interference by this Court. This ground was raised by the petitioner which was upheld by the Food Controller as also by the appellate authority. Therefore, l am not inclined to 2 interfere with the order of cancellation of allotment of Fair Price Shop and the order passed in appeal. 7. ln the result, the petition is dismissed. // /A