' ^'1J %:1.<^.W ^ y- 5-^ BEFORE THE HON'BLE HIGH COURT OF CHHATriSGARH A' DlLrt*StrfUK WRIT PETITION (C) N0. ^m /2008 PETITIONERS lO^?...--^ -^^•^•^'^' ^ ^ ^2. ^:^^-- -?''•"'.<^^.v>" ^•^y' -,&*;s •v"^--' p^< ^^ c^-' RESPONDENTS <• 3, ^' / 3. Aanand Ram son of Late Mehta Ram Sahu, resident of Gurudwara Road, Moti Ta'abpara, Jagdaipur, District Bastar fCG). Krishan Kumar, S/o. Shri Vasudev 1 iwari resiueni o\ Kower nouse Chowk, Jagda'pur, Distt. Bastar (CG) Damrudhar son of Shri Pardesi KaiTi Nay, resiueni: or jayuaipur, Dlstrict Bastar (CG) VERSUS State ot Chhattisgarh, through the Prindpa! Secretary, Dsp3rt.rrisnt of Food/ Civ'! Supp'1 and Consumer Protection, Dau Kalyan Singh Bhawan, Raipur (C.G.) The Secretary, Department of Food, Civil Supply and Consumer Protection, Dau Ka'yan S'ngh Bhawan, Raipur CC.G.) Director, Department of Food, Civii Suppiy' ariu Consumer Protection, DBU K3\/3n Sinoh Bhswsn. P^siDur (C.G.) /t. Food Controiier, Department of Food, Ci'vli Suppiy anu ConSurncr prnl-pri-inn nicf-rir*- - Ract-ar fCf:^ 5. The Collector, Dist.Bastar (CG) .tff WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA DA£iTir'i.ii_&jac:01: Ti-iF__DFTn-iQiSiFR<; tS mGH^eOg^TCT^HI^'T'TISGiARHA'rBILALc-oic- : 'WKETPBTITICOStCer Nb. 2661 of2008 PETITIONERS : AanandRam & Others. :VERSBS .. : ; RESPONDENTS : StateDfChhattisgarh&Others. •^' WRIT PETITIQN UNDER ARTIGLE 2260F TBE GONSTITUTION OF tM5!A SB: Hon'ble SUri Satish K. Aeuiliotri. J. Present: Shri Saii]eevyerma,A<^ocateiortHepetitioner:^^^^^^^^^ ^ Siu-i Shashank ThakuT^Panel]I.aw'yer:fbr the State/resppndents. QR®EEt )RALy ,;:^' ; , ::: (Passedon;31st(iay;Qf'August, 2010)1 , Ghallenge in this petition js; .tp; 'the . order dat^d 12.I0.2QO"7; (Anaexure^l^pas§edbytli^{rgs|%ndent^^^^ Gc e®:anent,^jE>e^atK8i^^|!^|t^^ Pr<Me(^ion,.lRaipuB,:uii;Aiieaiig^e^ci.;^ wherehy the apgeal ctf theg^®(|i|e^i<vgs?18teinissed;,u@h@iymg ej^ order.dated, 15.03.20:07:'{,'yin^aBej|P|2J)j^^^ :;i. Contoller, for.Colleetor, Jagdal]i)ui^;Ba|l^,|'c^ ofthe petitioner for digtHbiifien'^f||K.eJE^)gjefle. 1 , .: TUe. sole grievance:of'thepe|KS)^,j:m^^?^,.i81ljKat e®e(itiQ |[ was grarited license Ibr;;!'ffis^^ provisibns of the MadhyafPt'a^egfi.JISgrGisene Dealers Liceijsijigjr] j; Order, 1979J (fbr short 'the.Ordgr, 11979'). '%ithbutiafEording,ani opportunity of hearing, me^ely ;on^th& basis of 'letter"®tedi^ii]s 14.03.2007;(AnnexureP/7)^£^Seci^ars',:FoaK;aviliStigplB^ ^iw^^M Department, l^pur,,addressed^oAhe (Solleetor.ffistar, l^ . h[ 1 the petitioner was cancelled, which is illegal, unconstitutional and contrary to the provisions ofclause 10 ofthe Order, 1979. Leamed counsel appearing for the petitioner submits that thc impugned orders dated 15.03.2007 (Annexure P/2) is illega] ancl deserves to be quashed forthwith as the same was passed without authority of law de hors the statutory provisions under which. license was issued to the petitioner. On the other hand, Shri Thakur, leamed counsel appearmg 1'or tlie State/respondents submits that since the distribution of Kerosene was undertaken by the fair price shops, thus, all the retailers who were granted licenses were cancelled. Shri Thakur further submits that though, there is no amendment in the provisions ofthe Ordcr, 1979, however, in view ofthe letter dated 14.03.2007 (Annexiii't; P/7), the license ofthe petitioner was cancelled. Be that as it may, the provisions ofOrder, 1979 have been maik' hy the State Government in exercise of power conferred by sectioii J ofthe Essential commodities Act, 1955, which caimot be annullctl or modified by a simple letter written by the Secretary to the Government, Food & Civil Supplies Depanment. It is well seltlecl principle oflaw that the statutory provisions ofOrder, 1979 caniiol be overridden or nullified by executive instructions. In the case on hand, the State/respondents have passed thc executive order dated 14.03.2007 (Annexure P/7) to nullif)' thr statutory provisions as contained in clause 10 ofthe Order, 1(>79. Clause 10 ofthe Order, 1979 reads as under: ^ "10. Cancellation or suspension of Licence. No holder of a licence issued under this Order or his agent or servant or any other person acting on his behalf shall contravene any ofthe terms or conditions ofthe liceiicr or any provision ofthis Order and ifany such holder ur his agent or servant or any person acting on his behall' contravenes any ofthe said or conditions or provisions then without prejudice to any other action that may be taken against him, his li^ence may be cancelled or suspended by order in writing of the Licensing Authority: Provided that no order shall be made under tliis clause unless the licensee has been given a reasonable opportunity of stating his case against the proposecl cancellation or suspension." It is indisputable that no reasonable opportunity of hearing wa;i granted to the petitioner before canceling his license Ibr distribution ofkerosene. Even ifthe Govemment had decided to do away with the system of sale of kerosene through retailers. tlic State Govemment ought to have made necessary amendmenl.'< iii the provisions ofthe Order, 1979, but no effect could be given 011 thebasis ofexecutive instmctions. Thus, the impugned orders dated 12.10.2007 (Annexure P/l) ancl 15.03.2007 (Annexure P/2) are illegal, unconstitutional ancl deserves to be and are accordingly quashed. The writ petition is allowed with cost quantified to be a sum ol' Rs. 5000/- payable by the State/respondents to the petitioner. Sd/- Satish K. Agnihotri Judge Amit