KHEM DAS Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) SINCE common questions of law and facts are involved in this and batch of petitions shown in Schedule A, they are being disposed of by this common order.

(2.) PETITIONERS are authorised fair price shopkeepers holding authorisation under the Rajasthan Foodgrains and Other Essential Articles (Regulation of Distribution) Order, 1976 (for short 'the Order of 1976' hereinafter). The petitioners were issued authorisation by the Authorised Officer in exercise of powers conferred on him under clause: 3 of the Order of 1976. Various cases of irregularities and illegalities have been brought to the notice of the Department and the State Govt. and in view thereof, the State Govt. in consultation with the Legal Department had taken a decision on 7.2.97 that Sarpanch, Panch, Municipal Counsellor and members of Panchayat Samiti being public servants. It would not be lawful or expedient to allot authorisation to them to be an authorised fair price shopkeeper. Thus, any person who has been elected or nominated as Panch, Sarpanch, Municipal Counsellor or member of a Panchayat Samiti, the authorisation issued to be an authorised fair price shopkeeper, be cancelled and in future no authorisation should be given to these persons to run fair price shops. In pursuance of this order issued by the State Govt. on 7.2.97, the authorisation given to some of the petitioners to run fair price shop, was cancelled and some of the petitioners have been issued notice as to why their authorisation to run the fair price shop may not be cancelled on account of they being elected or nominated as Panch, Sarpanch, Municipal Counseller or member of Panchayat Samti. The order issued by the State Govt. on 7.2.97 cancelling the authorisation to run the fair price shops and the notices issued for cancellation of the authorisation to the petitioners are challenged by filing these petitions under Article 226 of the Constitution of India.

(3.) THE counsel for the petitioners Mr. M.S. Singhvi has submitted that (i) the State of Rajasthan does not have jurisdiction or power to take policy decision laying down restriction not to allot a fair price shop under the Order of 1976 to Panch, Sarpanch, Municipal Counsellor or member of Panchayat Samiti; (ii) cancellation or suspension of the order of authorisation of fair price shop could only, be done in exercise of the powers conferred under Clause 8 of the Order of 1976 and in the manner provided therein and in no other manner: (iii) the executive order issued by the State Govt. dated 7.2.97 at best can govern cases in future and not the cases where the authorisation of a fair price shop was in existence and (iv) the restriction imposed under the Order of 1976 contravenes and infringes the right of the petitioners to carry on trade, Commerce and business, guaranteed under Article 19(1)(g) of the Constitution of India and the restriction imposed in carrying on the business on the basis of the persons having been elected as Panch, Sarpanch, Municipal Counsellor or member of a Panchayat Samiti is an unreasonable restriction on the right and,, therefore, is liable to be struck down.