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Judgment
S.K. Gangele, J.—Looking to the facts of the case, this writ petition is disposed of finally because it has been mentioned in the order dated 10-09-2013 that the case be decided finally on the next date of hearing. The petitioner was allotted fair price shops at village Garhi and Kheriya vide order dated 27-09-2008 (Annexure P-7) and order dated 17-01-2008 (Annexure P-8). The order of allotment Annexure P-7 was passed in accordance with provisions of Clause-6 of the Madhya Pradesh Public Distribution Scheme, 1991 [hereinafter referred to as the "Scheme of 1991"]. The aforesaid fair price shops were cancelled vide order dated 14-05-2010 (Annexure P-9) after coming into force of M.P. Public Distribution System (Control) Order, 2009 [hereinafter referred to as "Control Order of 2009"] on the ground that after coming into force of the aforesaid Order of 2009 only Cooperative Societies working in rural areas would be eligible for allotment of fair price shops.
The petitioner challenged the aforesaid order before this Court in a petition, which was registered as Writ Petition No. 2782/2010. This Court disposed of the said writ petition vide order dated 11-05-2011 with the following directions:-
In view of the foregoing and having heard to the peculiar facts and circumstances of the case, this writ petition is finally disposed of with the directions to the respondents to allow the petitioner-society to run the fair price shop (Public Distribution System) till the time challenge to the vires to clause 4 of M.P. Public Distribution System (Control) Order, 2009 is finally decided in the writ petition being W.P. No. 5283/10 pending at main seat of this Court at Jabalpur.
Division Bench of Principal Seat of this Court at Jabalpur vide order dated 10-12-2011 dismissed Writ Petition No. 3487/2010 [Sai Kripa Gramin Prathmik Sahkari Upbhokta Bhandar Maryadit, Nainpur Vs. State of MP & Ors.] in which the validity of Clauses 4, 5(3) & 6 of the Control Order of 2009 was under challenge and granted liberty to the petitioners to challenge the order of cancellation of fair price shops.
The petitioner submitted an application to the Sub-Divisional Officer to set aside the order of cancellation of fair price shops but no action has been taken.
Learned counsel for the petitioner has contended that in accordance with Clause 15 of Control Order of 2009, the order passed in favour of the petitioner is saved, hence, the cancellation of fair price shops of the petitioner is illegal.
Learned counsel for the respondent No. 4 has submitted that earlier the petitioner filed a petition before this Court for cancellation of fair price shops. It was disposed of vide order dated 11-05-2011 passed in Writ Petition No. 2782/2010. Hence, this writ petition is not maintainable. He has further submitted that the Court has not granted any liberty to the petitioner to challenge the order.
In regard to primary objection raised by learned counsel for the respondent no. 4 about the maintainability of the present petition, it is clear that in Writ Petition No. 2782/2010, this Court disposed of the petition to the effect that the petitioner shall be allowed to run fair price shops up-to decision of writ petition pending before Main Seat at Jabalpur. Now, the petition in which vires of certain provisions of Control Order of 2009 was challenged by other persons has been dismissed. Hence, in my opinion, the present petition is maintainable.
It is an admitted fact that the petitioner was allotted the fair price shops under the provisions of Clause 6 of the Scheme of 1991. That Scheme has been replaced by Control Order of 2009.
Clause 15 of the Control Order of 2009 is a saving Clause. In accordance with the saving clause i.e. Clause 15 of the Control Order of 2009 the rights of a person or cooperative society who had been granted licence of fair price shops under the Scheme of 1991 are saved. In such circumstances, the order of cancellation of fair price shops of the petitioner is contrary to law.
The aforesaid provision has been considered by Division Bench of this Court vide judgment dated 02-02-2012 delivered in Writ Appeal No. 52/2012 [Shaktipunj Anusuchit Jati Mahila Bauddesiya Sahakari Sansthan Maryadit Vs. State of MP & Ors. ]. The Division Bench of this Court has held as under:-
Under Annexure-II, sub-clause (6) of clause 4 of Control Order, 2009 prescribes eligibility of allotment of fair price shops, which is as under:-
(6) Fair price shops in rural areas shall be allotted to primary agricultural cooperative, societies and laghu vanopaj sahakari societies registered under the Madhya Pradesh Co-operative Societies Act, 1960. The societies should have a credit limit amounting to 200% more than purchasing, amount or credit needed for monthly allocation (food grain, kerosene, sugar) alongwith sufficient storage space and computer for data entry and accounting purposes. The societies shall run the shops themselves and not operate through any agent or any private person.
From the aforesaid clause, it is clear that only Primary Agricultural Cooperative Societies and Laghu Vanopaj Sahakari Societies are eligible for allotment of fair price shops under certain conditions. However, clause 15 of Control Order, 2009 saves certain rights. Clause 15 of Repeal and Saving is as under:-
Repeal and Saving-The Madhya Pradesh Foodstuff (Distribution and Control) Order, 1960 and the Madhya Pradesh Khadyapadarth (Sarvajanik Nagrik Poorti Vitran) Scheme, 1991 are hereby repealed:
Provided that the repeal shall not affect,-
(a) any right, privilege, obligation or liability acquired, accrued or incurred under the order and scheme so repealed;
(b) the previous operation or the order and scheme so repealed or consequences of anything already done or suffered thereunder.
From the proviso of the aforesaid clause, it is clear that any right or privilege acquired under the order and scheme of 1991 is saved. As per appellant, he acquired the right to run fair price shop under the Scheme of 1991 and that right has been saved by the proviso of clause 15 of Control Order, 2009.
The Division Bench at Main Seat, Jabalpur has disposed of the writ petition No. 3487/2010 vide order dated 16/12/2011 with the following observations:-
Thus, the classification of the cooperative societies for the purpose of running fair price shops in rural areas is based on intelligible differentia and has a reasonable nexus with the object i.e. availability of essential commodities at controlled prices to public in general. Thus, the provisions of clause (6) can neither be said to be arbitrary nor discriminatory.
So far the submission made on behalf of the petitioners that the rule of estoppel would bind the State Government, as the petitioners acting on the representation made by the State Government have formed the cooperative societies, is concerned the same need mention only to be rejected. It is well settled in law that principle of estoppel does not operate against the law. [See Commissioner of Customs, Calcutta Vs. Indian Rayon and Industries Ltd., The reliance placed by learned counsel for the petitioners on the decision of the Supreme Court in Vij Resins Pvt. Ltd. (supra) is of no assistance to the petitioners as in that case the impugned Act was struck down on the ground that the same was hit by Article 31(2) of the Constitution of India as it took away the right to hold the property which is not the case here. Similarly the case of Orient Paper Mills Ltd. (supra) is also distinguishable. Under an executive order the State Government had granted assurance that industries would be granted exemption from payment of electricity duty. In the aforesaid context, it was held by the Supreme Court that the State Government is bound by the doctrine of promissory estoppel. Besides that no assurance was given by the State Government to the petitioners that the policy of allotment of fair price shops would never be changed.
So far as the submission made by the learned counsel for the petitioners that the provisions of Control Order 2009 are in contravention of the Order framed by the Central Government is concerned, it is clear from perusal of the provision of Public Distribution System (Control) Order, 2001 that the Central Government has left it to the State Government to decide the person in whose favour the licence should be issued to run fair price shops and it is for the State Government to decide as to who should be granted the licence to run fair price shop. There is no provision in Public Distribution System (Control) Order 2001 directing that a particular individual or a cooperative society has to be granted licence to distribute the essential commodities through fair price shop. Therefore, the submission that the provisions of Control Order 2009 are in contravention of the Control Order 2001 does not deserve acceptance and accordingly, the same is rejected.
In view of the preceding analysis the impugned provisions of the Control Order 2009 neither offend Article 14 nor Article 19(1)(g) of the Constitution of India. However, in the cases where the petitioners have challenged the order of cancellation of licence of fair price shops on merits, such petitioners would be at liberty to challenge the order of cancellation of licence of fair price shop in accordance with law. In the result, we do not find any merit in the writ petitions. The same are accordingly dismissed.
From the observation of the Division Bench, it is clear that the persons or societies have been given a liberty to challenge the order of cancellation of licence of fair price shop on merits.
In the present case, the appellant challenged the cancellation of fair price shop on the ground of clause 15 of Control Order, 2009, which is a saving clause and saves the right of the appellant in regard to licence to run fair price shop granted to the appellant under the Scheme of 1991 and that is valid right because the saving clause has saved the right of the appellant. After coming into force of Control Order, 2009 the right of the appellant to continue to run the fair price shop has not been taken away completely, hence, on this basis the cancellation of fair price shop of the appellant is not proper. However, the Collector is at liberty to verify the fact that whether the fair price shop was allotted to the appellant after coming into force of Control Order, 2009 or under the Scheme of 1991 or there were other grounds in regard to cancellation of fair price shop of the appellant. Subject to above conditions the fair price shop of the appellant could not be cancelled merely on the ground of coming into force of Control Order, 2009. Accordingly, the order passed by learned Single Judge is modified and the impugned order (Annexure P/1) is hereby quashed.
Consequently, the writ petition is allowed. The impugned orders dated 10-08-2013 (Annexure P-1) and dated 14-05-2010 (Annexure P-9) are hereby quashed. Apart from this, if there may be any irregularities, the authorities are at liberty to take action against the Society. No order as to costs.