NAGENDRA SINGH Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This matter has come up before the Division Bench upon a reference made by the learned Single Judge vide order dtd. 19/7/2021, who, thereby expressing disagreement with earlier Single Bench judgment of this Court in Writ Petition No.13958/2016 (Suresh Patel Vs. State of Madhya Pradesh and another) dtd. 31/3/2017, has referred the following question to be answered by the Division Bench:-

(2.) Shorn of unnecessary details, the brief facts of the case are that petitioner No.1 Nagendra Singh is a salesman of Fair Price Shop, Chhathi Bamhori and petitioner No.2 Dharmendra Singh alias Gattu Singh is an agriculturist and ex-member of Janpad Panchayat, Lavkushnagar, Ward No.22, District Chhatarpur, who was at the relevant point of time holding the post of Chairman of Block Jal Samwardhan Samiti, Lavkushnagar, the Fair Price Shop Licensee. According to the petitioners, a false complaint was made by political rivals of petitioner No.2 against him for committing irregularities in the fair price shop. The respondent No.3-Junior Supply Officer, Food Civil, Supplies and Consumer Protection, Lavkushnagar, District Chhatarpur held an enquiry without informing him and prepared the report behind his back. The respondent No.2-Collector, Chhatarpur on the basis of said exparte enquiry report issued a show cause notice to the petitioners on 1/4/2021, which was served on them on 3/4/2021, fixing 6/4/2021 as the date by which time the reply was to be submitted by the petitioners. However, documents mentioned in the show cause notice were never supplied to the petitioner No.2 inasmuch as no enquiry report was served upon him, which were necessary for preparing the reply. The petitioner No.2 therefore appeared before the respondent No.2-Collector through his counsel and filed an application for providing these documents and sought time to file a reply. It is contended that the allotment of the commodities in the fair price shop is controlled by the officers of the Food Department. The Collector without awaiting reply of the petitioners, proposed action for prosecution of the petitioners under different clauses of the Madhya Pradesh Public Distribution System (Control) Order, 2015 (for short "the Control Order, 2015") and vide impugned order dtd. 6/4/2021 directed lodgement of FIR against the petitioners under Sec. 3/7 of the Essential Commodities Act, 1955 for breach of Clauses 10(3) and (4), 11(1),(3), (6) and (8) and Clause 16 of the Control Order, 2015 and also for violation of conditions No.6, 21, 22 and 25 of the licence.

(3.) Argument of the petitioners before the learned Single Judge was that in view of Clause 2(j) of the Control Order, 2015, the Sub-Divisional Officer is shop allotment authority and as per clause 2(c) thereof, the Collector is the Appellate Authority. Action under Clauses 16 and 17 of the Control Order, 2015 could have been taken only by the Sub-Divisional Officer. The Collector by passing the impugned order exceeded his jurisdiction. There is total non-compliance of Clauses 13 and 16(2) of the Control Order, 2015. Therefore, action contemplated under Clause 16(8) of the Control Order, 2015 is wholly without jurisdiction. Reliance was placed upon Single Bench judgment of this Court in Suresh Patel Vs. State of Madhya Pradesh and another in Writ Petition No.13958/2016 decided on 31/3/2017, in paras 17 and 18 of which, it was held as under:-