IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 642 of 2009 1. Susheel Kumar S/O Sri Dharamveer Singh, R/O Adarsh Colony, Ward No. 17, Rudrapur, District Udham Singh Nagar. 2. Naresh Kumar S/O Late Kure Singh, R/O Adarsh Colony, Ward No. 13, Rudrapur, District Udham Singh Nagar. 3. Asha Rani W/O Sri Manoj Kumar, R/O Ward No. 10, Teahers’ Colony, Kichha, District Udham Singh Nagar. 4. Neeraj Kumar, S/O Sri Ram Kumar, R/O Ward No. 11, Punjabi Mohalla, Kichha, District Udham Singh Nagar. 5. Bhupal Chandra Mandal, S/O Sri Manohar Mandal, R/O Ward NO. 4, Dineshpur, District Udham Singh Nagar. 6. Gauri Shankar, S/O Balveer Kumar, R/O Ward NO. 9, Sitarganj Road, Khatima, District Uhdam Singh Nagar. … Petitioners. Versus 1. State of Uttarakhand through Secretary, Food and Civil Supplies Department, Dehradun. 2. District Magistrate, Udham Singh Nagar. 3. District Supply Officer, Udham Singh Nagar. … Respondents. Mr.Vipul Sharma, Advocates, learned counsel for the petitioners. Mr. K.P.Upadhyay, Learned Additional Chief Standing Counsel for the respondents. Date May 06, 2010. Hon’ble B.S.Verma, J. By means of this writ petition, the petitioners have sought the following relief:- A. To issue a writ, order or direction in the nature of certiorari for quashing the impugned order dated 12.1.2009, no. 74/XIX-1/08-1 Khadhya/2009 (Annexure No. 4 to this writ petition) passed by the respondent no. 1 and the consequential order dated 12-1-2009, no. 552/S.T./2009 (Annexure No. 3 to this writ petition) passed by respondent no. 2 A-1. To issue a writ, order or direction in the nature of certiorari for quashing the impugned order dated 29- 9-2009 (Annexure No. 1 to the writ petition passed by 2 the respondent no. 1 and the consequential order dated 3-10-2009 (Annexure No. 2 to the writ petition) passed by respondent no.2. B. To issue any other writ, order or direction, which this Hon’ble Court may deem fit and proper in the circumstances of the case. C. Award the cost of the writ petition in favour of the petitioners. By the order dated 12-1-2009, the fair price shops allotted to the petitioners and other persons were suspended by the State Government till further orders and by the subsequent order dated 29-9-2009, the allotments of 14 fair price shops allotted to the petitioners and other persons were cancelled with immediate effect. Brief facts giving rise to the present writ petition, according to the petitioners, are that on 13-5-2008 an advertisement was issued by the Food and Civil Supplies Department and the District Administration, Udham Singh Nagar inviting applications for allotment of 21 fair price shops within the District Udham Singh Nagar. The allotment was to be made on the basis of suitability. A number of candidates applied for allotment. It appears that a committee was formed for scrutiny of the applications and for recommendations comprising the following officers:- 1. Additional District Magistrate, Udham Singh Nagar- Chairman. 2. District Supply Officer, Udham Singh Nagar- Coordinator. 3. Sub Divisional Magistrate Kashipur/Jaspur Member. 4. Sub Divisional Magistrate, Khatima. Member. 5. Sub Divisional Magistrate, Rudrapur. Member. 6. Sub Divisional Magistrate Bazpur/Gadarpur Member. 7. Deputy Regional Marketing Officer, Rudrapur Member. 3 Ultimately 14 fair price shops were allotted to the petitioners as well as eight other persons in pursuance of the recommendations made by the selection committee headed by Additional District Magistrate, Udham Singh Nagar on 30-12-2008 and approved by the District Magistrate, Udham Singh Nagar on 6- 1-2009. According to the petitioners, in the absence of any reasons assigned to them for cancellation of the allotment orders in their favour, they sought information under the Right to Information Act for obtaining the Government Order dated 12-1- 2009 and order dated 29-9-2009 passed by the State Government on the alleged complaints made regarding serious irregularities in the allotments the local people and representatives of the people. The information was supplied to the petitioners vide Annexures 4 and 5 to the petition, which are the two orders under challenge in this writ petition. The petitioners then came to know that some complaints were made to the effect that irregularities have been committed by the authorities, who allotted the fair price shops and in pursuance to the complaint, the District Supply Officer Udham Singh Nagar Sri Naresh Chandra Semwal was initially suspended, but his suspension order was revoked within three days. According to the petitioners, the impugned orders have been passed by the respondent no. 1 in an arbitrary and illegal manner and the same are liable to be set aside. In reply of paragraph no. 2 of the writ petition by which the legality, validity and propriety of the impugned orders have been questioned, counter affidavit duly sworn in Mr. Rajendra Singh, Deputy Secretary, Department of Food and Civil Supplies Dehradun has been filed on behalf of the respondent no.1 on 8-2- 2010. The following is averment has been made in paragraph no. 4 which is in reply of para 3 of the writ petition:- 4 “4) That the contents of para no. 2 of the amended writ petition as stated are not admitted hence denied. However, it is submitted that some people of the said authority made complaints in writing or verbally with respect of selection committee to the Shasan, consequently in pursuance to the letter no. 74/XIV/08 Civil Khadya/2009 issued by the Secretary Food and Civil Supply Depqartment, Dehradun on 12/01/2009 the final allotment of fair price shops which were recommended by the selection committee for issuing the licence of the fair price shop has been stayed till further orders only and the inquiry proceeding in pending before Shasan as yet. It is therefore, not so possible to take further action with regard to allotment of shops at now. However, it is submitted that no allotment letter in respect of fair price shop had been given to the petitioners and furthermore, it is also necessary to be added here that there was policy in respect of allotment of fair price shops earlier in the State of Uttarakhand, however, the process to determine the policy pertaining to allotment of fair price shops in the State of Uttarakhand which still continuing will take some time probably two to three months in the aforesaid context and on the completion of the determination of the above said policy the fact would be brought to kind attention of this Hon’ble Court accordingly thereafter.” In this petition, on behalf of respondent no.1, earlier also a counter affidavit was filed, which was duly sworn by the same Officer on 6th October 2009, similar stand was taken by the respondent no.1. On the other hand, on behalf of the petitioners, supplementary affidavit was filed on 23-12-2009, wherein the petitioners have refuted the stand of the respondents that no policy for allotment of fair price shops is in existence. The petitioners have filed copies of Government Orders dated 27-3-1999 and 22-5- 1999 as Annexure Nos. S.A.-1 and S.A.2 to the supplementary 5 affidavit to show that there has been Government policy from the time of erstwhile State of Uttar Pradesh for purposes of allotment of fair price shops, whereby the reservation in allotment of fair price shops made within the urban area was abolished by the erstwhile State of U.P. In reply thereto, supplementary counter affidavit was filed on behalf of the respondent nos. 2 and 3 on 8-2-2010. The affidavit is duly sworn in by Mr. Naresh Chandra Semwal, District Supply Officer, Udham Singh Nagar. In paragraph no. 5 the following averments have been made in this supplementary counter affidavit. “5-That the contents of para 3 of the supplementary affidavit as stated are only admitted to the extent that the recommendation made by the selection committee in respect of the allotment of fair price shops by Government Orders, those Govt. Orders were prevailing since the time of U.P. Shasan. It is further submitted that the new policy in respect of allotment of fair price shops for urban area on the geographical basis is being formulated by the Uttarakhand Shasan accordingly and as per that new policy the allotment of fair price shops would be made in future.” In this writ petition rejoinder affidavit has been filed by the petitioners. Along with the same, the enquiry report, which was submitted on 15-1-2009 by the Enquiry Officer, Regional Food Controller, Garhwal Division has been annexed as Annexure R.A.- 1 to the rejoinder affidavit. It is mentioned in this enquiry report that a complaint was made by one Satyawan Garg, President Vyapar Mandal, Bazpur on 5-1-2009. The statement of complainant Satyawan Garg was recorded on 14-1-2009, which has been annexed as Annexure R.A.-3 to the rejoinder affidavit. The complainant has proved the complaint made by him. He has stated that no shop was allotted to the applicant in respect of whom he made the complaint. He was informed that the shop was allotted in favour of the person residing at Haldwani. He also stated that the 6 business men had reported that the respondents have allotted the shops on extraneous consideration. He has specifically stated that the complaint was made by him under pressure of the business men. In the enquiry, the Enquiry Officer has not given any finding on the point whether any irregularity had been committed in the allotment of fair price shops or not. In the concluding part of the enquiry, he has observed that the District Supply Officer Udham Singh Nagar has stated in his statement that after scrutinizing 408 applications, he found that 214 applications were made by the applicants of Kashipur area and out of them, 14 fair price shops were allotted after examination of the papers. It is also mentioned in the report that the members of committee has recommended the names of 14 applicants as provided under the Government Orders. Finally, the Enquiry Officer, without recording any finding on the issue whether any irregularity was committed in the allotment of fair price shops, has only forwarded the recommendation letter which was made available by the D.S.O. along with the statement of the D.S.O. Udham Singh Nagar and the statement of complainant Satyawan Garg as well as another complaint received from one Ramesh Pal, on 15-1-2009 by fax. The Enquiry Officer had shown his inability to make any enquiry on the complaint made by Ramesh Pal as the same was received by him on the very day when the report was prepared and sent to the State Government. The State Government appears to have taken its decision to cancel the allotments of the fair price shops on this very enquiry report dated 15-1-2009, which gave rise to the present writ petition. I have heard learned counsel for the parties and perused the entire material placed before the Court. Learned counsel for the petitioners has contended that when the Interim order was passed by this Court on 1-5-2009, it 7 was directed that the State must specifically state in its reply as to what action, if any, has been taken against concerned officials as there were prima facie complaints against them regarding anomalies, but so far no explanation has come forward from the side of the State at all that any such action was taken. Learned Additional Chief Standing Counsel appearing for the State has vehemently urged that no right is accrued to the petitioners for allotment of fair price shops. The Government has a right to cancel the allotment at any time before issuance of the allotment order and that no allotment order had been issued in favour of the petitioners and other allottees. From a perusal of the impugned orders passed by the State Government, it is evident that the only reason given for cancellation of allotment of fair price shops that that there is no policy of the Government and a policy has to be formulated. On the basis of enquiry report dated 15-1-2009, which was submitted by the Regional Food Controller, the enquiry officer has not at all formed any opinion whether some irregularities had been committed in the allotment of shops or not. As indicated earlier, he only forwarded the statements of District Supply Officer and that of the complaint Satyawan Garg and other documents for perusal of the Secretary. Learned Additional Chief Standing Counsel has lastly submitted that there is no policy of the State of Uttarakhand and the policy for allotment of fair price shops is to be formulated in the near future. It is pertinent to mention here that the District Supply Officer has filed his supplementary counter affidavit wherein it was stated that the Government Orders were issued by the State of Uttar Pradesh. It would be seen that those Government Orders were in force at the time of allotment of fair price shops. But in the counter 8 affidavit filed on behalf of the respondent no.1 by Mr. Rajendra Singh, Joint Secretary on 8-2-2010 it was not denied that there was a policy for allotment of fair price shop formulated by the State of U.P. and the same has been in existence. In paragraph no. 4 of the counter affidavit, this Officer has stated that “there was policy in respect of allotment of fair price shops earlier in the State of Uttarakhand, however, the process to determine the policy pertaining to allotment of fair price shops in the State of Uttarakhand which still continuing will take some time probably two to three months in the aforesaid context and on the completion of the determination of the above said policy the fact would be brought to kind attention of this Hon’ble Court accordingly thereafter.” It finds place to mention here that till date, the State Government has not kept the earlier Government Orders issued by the erstwhile State of U.P. in abeyance for its application to the State of Uttarakhand. In view of the U.P. Reorganization Act, 2000, unless the Government Orders are repealed or modified, the earlier Government Orders will have legal force and would continue. That being so, the Government Orders relied upon by the petitioners were fully effective and in force in the State of Uttarakhand. Moreover, the argument of the learned counsel for the petitioners that the petitioners could not be made suffer for want of a policy of the State Government, which is to take place in future, has some force. The argument of the learned Additional Chief Standing Counsel that there is no policy of the State Government for allotment of fair price shop; that the policy is yet to be formulated therefore the allotments of shops of the petitioners were cancelled and the petitioners have no right for allotment of shops is not at all acceptable. As mentioned above, the Selection Committee headed by the Additional District Magistrate, Udham Singh was formed in accordance with the Government Orders, which recommended the 9 names of the petitioners and other persons for allotment of 14 fair price shops. The recommendations made by the Selection Committee was approved by Sri Surendra Singh Rawat, the then District Magistrate, Udham Singh Nagar. So far as the irregularity in the allotment order is concerned, no other applicant out of the total 214 applicants, who had applied for allotments for 21 fair price shops in the area, came forward to make any complaint to whom the allotment of fair price shops was refused, therefore, the only inference can be drawn that no irregularities were committed by the Selection Committee in allotment of the fair price shops. The complainant Satyawan Garg, who filed the complaint, himself stated before the Enquiry Officer that the complaint was made under pressure of the businessmen of the locality. For the reasons and discussion above, I am of the view the impugned order has been passed by the Government without application of mind and in an outright arbitrary manner, therefore, the impugned orders dated 12-1-2009 and the order dated 29-9- 2009 passed by the State Government (Annexure-5 and Annexure- 1(amended) to the writ petition) as well as the consequential orders are liable to be quashed and are hereby quashed. The respondents are directed to complete further formalities to make available the fair price shops to the applicants in accordance with the Rules, which were recommended by the Selection Committee and approved by the District Magistrate, Udham Singh Nagar. The writ petition is accordingly allowed. ( B.S.Verma, J.) RCP 10