m-fs^"^~ ^?' c ' f.^°' IB BJ'IJ^SI IN THE HIGH COURT OF JUDICATURE AT BILASPUR (C.G.) W. P. Nof.?.5/ /2005 PETITIONERS /l. €$i' -^' / ^X,,4Y^ ^^ ?° .<^-'" <OA^r- ,.^^-a" ^-w ^^r ^ ^' ..•"'^ '^ ^/•^ ' ^>-"' 2. Madan Sen, Aged about 35 years S/0 Shri Ramadhar Sen, President Swayat Pragatisheel Prathmik Sahakari Upbhokta Bhandar Maryadit, Bhitarras Sihava Nagari ,(A cooperative registered under the provisions of Chhattisgarh Swasahayata Sahkarita Adhiniyam, 1960 (17 of 1961) District Dhamtari (Chhattisgarh) Swayat Pragatisheel Prathmik Sahakari Upbhokta Bhandar Maryadit, Bhitarras Sihava Nagari (A cooperative registered under the provisions of Chhattisgarh Swasahayata Sahkarita Adhiniyam, 1960(17 of 1961) District Dhamtari (Chhattisgarh) President Madan Sen Aged about 35 years S/0 Shri Ramadhar Sen R/0 Bhitarras Sihava Nagari District Dhamtari (C.G.) VERSUS State of Chhattisgarh Through the Collector, Department of Food Section District Dhamtari (C.G.) Sub Divisional Officer (Revenue) P.0. Nagari, District Dhamtari (Chhattisgarh) M PETITION UNDER ARTICLES 2'26/227 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF APPROPRIATE WRITS OF MANDAMUS AND CERTIORARI AND FOR QTHER SUITABLE WRITS AND DIRECTIONS:- .y^ ^^ HIGH COURT OF CHHATTISGARH : BILASPUR v^ PETITIONERS RESPONDENTS WRIT PETITION N0.63510F 2005 Madan Sen & Another Versus State of Chhattisgarh & Another (Writ Petition underArticle 226/227 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. 4Dresent:~ Shri Sourabh Jain, Advocate for the petitioners. Shri P.K. Bhaduri,Panel Lawyer for the State. ORDER(ORAL) (Passed on this 20th day of July, 2010) 1. Challenge in this petition is to the order dated 10-11-2005 (Annexure P/10) passed by the Sub Divisional Officer (Revenue), Nagari, District-Dhamtari, whereby the aliotment of Fair Price Shop (for short "FPS") at village Bheetarras Sihava, District-Dhamtari, was cancelled on account of several irregularities found in inspection, the security deposit was forfeited and the shop was temporarily allotted to Aadim Jati Sewa Sahakari Sanstha, Gattasilti. 2. The facts, in nutshell, as projected by the petitioners, for adjudication of the case, are that the petitioner No.1 is the president of the petitioner No.2 is the society. The petitioner was allotted FPS for distribution of essential commodities to the ration card holders on 9-7-2001. Thereafter, an agreement to the effect was executed. The petitioner is governed by terms of the agreement. When the Chhattisgarh Public Distribution System (Control) Order, 2004 (for short "the Order 2004") came into consideration before the Division Bench of this Court in Raghuveer Singh Gond v. Union of India & others1 and other connected matters, this Court observed as under: 1 W.P. No. 445 of 2005 (Decided on 6/9/2005) ^ 4; „/"" 1 ^^ 1 (v) Co-operative Societies which have been running fair price shops prior to the Order 2004 will continue to run the fair price shops in terms of the agreement between the Co-operative Societies and the State Government for the full period for which the agreement has been made and allptment made in their favour can be cancetled onty in terms ofthe said agreement. There is no provision for termination of FPS under the agreement, which was made under the New Public Distribution System Master Scheme, 2001 (for short "the Scheme, 2001"). The agreement provides for imposition of penalty under the provisions of Section 7 ofthe Essential Commodities Act, 1955 (for short "the Act, 1955"), in the event, there is a failure in compliance of the provisions of Section 3 oftheAct, 1955. Thus, this petition. Shri Jain, learned counsel appearing for the petitioners, submits that admittedly a show cause notice dated 7-10-2005 (Annexure - P/7) was issued to the petitioner for alleged irregularities found during inspection i.e on 31-8-2005 at 11.00 a.m. FPS at Banda. The shop in question was found closed. The said act of the petitioner is against the provisions of the Order, 2004 as well as against the provisions of Section 3 ofthe Act, 1955. The petitioner submitted his reply wherein the issue asto action may be taken under provisions of the Act, 1955 was not raised. It was not further raised that the termination was bad, as there was no provision of termination of the allotment of shop in terms of the agreement. The reply simply states that on the said date he has gone to attend the recruitment process for the post of Police Constable at Jagdalpur, however, he asked his brother namely; Jivan Lal Sandilya to sit in the shop. He could not fill up the stock register and further the stock register of the previous month was also not made properly for that he tendered his apology. ^ ^^^- •^.^-: 6. 7. Thereafter, the impugned order was passed. Learned counsel further submits that it is not correct that nobody was found in the shop though there were some deficiencies in running of FPS. hlowever, as per the law aslaid down in Raghuveer Singh Gond (supra), the case of the petitioner is governed by the terms of the agreement only and, as such, there is noprovisionfortermination. Per contra, Shri Bhaduri, learned Panel Lawyer appearing for the State, submits that FPS was allotted to the, petitioner under the Scheme, 2001. The petitioner would be governed by the Scheme, 2001. Learned counsel further submits that the petitioner without taking recourse to the appellate forum has approached this Court. Shri Bhaduri next submits that the petitioner was afforded proper opportunity of hearing by issuing show cause notice, the petitioner submitted his reply and the allotment order was cancelled after considering the reply submitted by the petitioner. Thus, this petition may be dismissed. 1 have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. Be that as it may, it is evident from the impugned order that FPS was allotted to Aadim Jati Sewa Sahakari Sanstha, Gattasilli, thus the new allotee became beneficiary of the altotment. It appears that thereafter, the new allotee is ruining FPS, as it is not indicated by either party whether there was a change of allotment of FPS or not. There is no interim relief in favour of the petitioner and the Aadim Jati Sewa Sahakari Sanstha, Gattasilli, is running the FPS immediately after the impugned order was passed on 10-11-2005. Thus, no relief can be granted to the petitioner without impleaidng the Aadim Jati Sewa Sahakari Sanstha, Gattasilli, as a necessary party. "^—KSf^i: • ::r:^^—^~^l-iw;-"..^^<^^^^,a^-^.;^^^^^^ -w •%:":'^.. 'f-f.^ 8. With regard to non-joinder of necessary parties, the Supreme Court in Udit Narain Singh Malpaharia Vs. Additional Member Board of Revenue, Bihar and another , observed as under: "(7) To answerthe question raised itwould be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is wetl settled ; it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. 9. For the reasons mentioned hereinabove, without going into the merits of the case the petition deserves to be dismissed for want of impleadment of necessary party, as no relief can be granted in favour of the petitioner without affording an opportunity of hearing to Aadim Jati Sewa Sahakari Sanstha, Gattasilli. The petitioner had ample opportunity till date to implead necessary party, however, no step was taken by the petitioner to do the needful during pendency ofthe petition. 10. Thus, in view of the above, l do not find any justification to entertain this petition. It is accordingly dismissed. 11. No order asto costs. Sd/- SatishK.Agnihotri Gowri Judge 'AIR 1963 SC 786