Om Prakash Rajput vs State of M.P. and others

In the present case, the petitioner who is a transporter of essential commodities has filed this petition under Article 226 of the Constitution of

India against the order dated 7.4.2017 (Annexure P/3) passed by the respondent No.2/Collector, Chhatarpur whereby the Collector has directed

the Tehsildar, Naogaon to lodge a criminal complaint against the petitioner for illegally stocking 55.24 quintals of grains, 3 quintals of Sugar and

1200 liters of diesel.

The petitioner''s contention is that the respondent No.2/Collector has no jurisdiction to pass such an order because he is the appellate authority

and since the petitioner is an authorized transporter for the purpose of transportation of essential commodities from the base depots of the M.P.

State Civil Supplies Corporation to the concerned fair price shops for its distribution and is governed by the Madhya Pradesh Public Distribution

System (Control) Order, 2015 (hereinafter referred to as ''the Control Order of 2015'').

The petitioner''s further contention is that even assuming for the sake of argument that the petitioner was involved in commission of any

irregularity, then also the same would be punishable under clause 16 of the aforesaid Control Order of 2015 and the competent authority shall not

pass any order without giving an opportunity of hearing to the aggrieved person.

The petitioner''s further contention is that the impugned order has been passed in violation of principles of natural justice as no opportunity of

hearing was given after his truck was searched and straightway the order has been passed by the Collector directing the Tehsildar to lodge a

criminal complaint against the petitioner, hence it is prayed that the impugned order be quashed.

On the other hand, in return, the main contention of the respondents is that the Collector has passed the order under Section 3 & 7 of the

Essential Commodities Act, 1955 and as provided under Clause 13(2), 15(3) and 16 of the Control Order of 2015 and it is submitted that as per

clause 16 of the Control Order of 2015, it is mandatory that the person found guilty shall be prosecuted under Section 3 & 7 of the Essential

Commodities Act, 1955 and thus it cannot be said that the Collector has exceeded its jurisdiction in passing the aforesaid order. It is further

submitted that the Collector is the appellate authority only when the order is issued by the Shop Allotment Authority whereas in the present case

the petitioner is a transporter, hence the Collector will not be the appellate authority hence it is submitted that the petition be dismissed.

Heard learned counsel for the parties and perused the record.

Before embarking upon to deal with the merits of the case, it would be expedient to refer to relevant clauses of the Control Order of 2015, the

same read as under :

Definitions.-

(1) In this order, unless the context otherwise requires,-

(a) xxx xxx xxx

(b) xxx xxx xxx

(c) ""Appellate Authority"" means the Collector of the concerned district;

Prevention of Substitution/ Diversion/Adulteration

(1) With a view to prevent replacement/ diversion/ adulteration, allottee institution shall have to install such physical or electronic

equipment and shall have to maintain them regularly as may be specified by the State Government from time to time.

(2) No person shall commit substitution/ diversion/ adulteration during transportation, storage or distribution of food grains and other

essential commodities kept for distribution under Targeted Public Distribution System.

Power to Enter, Search and Seizure.-

(1) Any officer not below the rank of junior supply officer of Food, Civil Supplies and Consumer Protection Department or any

officer not below the rank of Naib Tehsildar of Revenue Department or any officer not below the rank of Sub-auditor of Co

operative Department within their respective jurisdiction shall be competent to act under this order.

(2) If such an authorised officer under subclause (1) has sufficient reasons to believe that provisions of any clause under this order or

any other order issued by State/Central Government are being violated, such officer may enter, inspect or search any fair price shop

or premise or vehicle of authorised agency or any such premise or vehicle from where unlawful storage/ transportation of

commodities , supplied under Targeted Public Distribution System is being done, with such assistance as is necessary.

(3) If the authorised officer has reasons to believe that essential commodities have been stocked or removed in violation of provision

of any Central or State order or violation of this order, he may seize such essential commodities and equipments, vehicles or

documents related thereto.

(4) xxxx.

(5) xxxxx

(6) xxxxx

Punishment and Penalty -

(1) xxx xxx xxx

(2) In case of violation under clause 13 for quantity more than 10 percent of the monthly allocation or repetition of violation under the

same clause, a person shall mandatorily be prosecuted under section 7 of Essential Commodities Act, 1955 (No.10 of 1955) .

(3) xxx xxx xxx

(4) xxx xxx xxx

(5) xxx xxx xxx

(6) xxx xxx xxx

(7) xxx xxx xxx

(8) xxxx.

(9) xxxx.

Appeal.-

(1) Any person/society aggrieved by order of fair price shop allotment authority may file an appeal within 30 days before appellate

authority and decision of the appellate authority shall be final:

Provided that, appellate authority shall not pass any order without giving an opportunity of hearing to the aggrieved person/society.

(2) The appellate authority, if satisfied by reasons to be recorded in writing, may stay the order of subordinate authority, pending

disposal of appeal.

(emphasis supplied)

A bare perusal of the aforesaid provisions clearly reveals that the appellate authority is the Collector of the concerned district. The contentions

raised by the respondents that only in case of an order issued by the shop allotment authority the appeal is maintainable before the Collector who is

the appellate authority deserves to be accepted as the case of the petitioner does not fall within the ambit of an order passed by the shop allotment

authority, hence the appeal is not maintainable.

However, it is apparent that in the present case the violation is of clause 13 only. It is also admitted by the respondents that its punishment is

provided under clause 16(2) but it is nowhere provided in the aforesaid order as to the person who is competent to pass the order under Clause

16(2) but drawing an analogy from from clause 15(1) of the Order of 2015, it can be safely presumed that the Collector can also pass such an

order which can only be made by the authorized officer who would be as per clause 15 of the Control Order of 2015 not below the rank of Naib

Tehsildar of Revenue Department or any officer not below the rank of Sub-auditor of Co-operative Department within their respective jurisdiction.

Even if it is held that the Collector has exercised its jurisdiction under the Control Order of 2015 even then, the impugned order is liable to be

quashed on the ground of violation of principles of natural justice because regardless of the fact whether remedy of appeal is available to the

petitioner or not, it was incumbent upon the Collector to give an opportunity of hearing to him before passing the impugned order especially when

the Collector has also directed the Tehsildar to lodge a criminal complaint against the petitioner as in the considered opinion of this court when the

Collector, while sitting as an appellate authority under clause 17(1) of the Control Order is also required to adhere to the principles of natural

justice by affording an opportunity of hearing to the aggrieved person/society, then, such opportunity shall also be mandatorily be provided to the

aggrieved person while exercising his original jurisdiction. In view of the matter, in the considered opinion of this court, as no opportunity of hearing

was provided to the petitioner before passing the impugned order, hence, the same is liable to be quashed.

In the circumstances, the petition stands allowed. The order dated 7.4.2017 passed by the respondent No.2/Collector, Chhatarpur is hereby

quashed with liberty reserved to the respondents to pass appropriate order in accordance with law after giving due opportunity of hearing to the

petitioner.