# Amita Devi v. State of U.P. & Ors

- **Citation:** (2022) 4 ILRA 469
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-21
- **Case number:** Writ C No. 26269 of 2020
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amita-devi-v-state-of-u-p-ors-48340
- **Pages:** 4

## Headnote

Civil Law - Constitution of India, 1950 -
Article 226, Essential Commodities Act,
1955
-
Section
3
-
U.P.
Essential
Commodities (Regulation of Sale and
Distribution Control) Order, 2016 - Clause
2(I), 8(6), 12: - Validity of Cancellation
Order of Fair Price Shop License &
dismissal of statutory Appeal - an
inspection carried out by a 'Minority
Welfare Officer' - Show cause notice -
reply
submitted
-
not
considered
-
Petitioner's License of Fair Price Shop was
cancelled relying upon the inspection in
question - statutory Appeal dismissed -
writ petition - inspection in question
carried out without there being such
authority/ delegated power as per Clause
2 (I) under 'Designated Authority' -
'delegatus non potest delegare' - hence,
impugned orders are set aside. (Para - 4,
11, 12, 18)

Writ Petition Allowed. (E-11)

List of Cases cited: -

## Text

4 All. Amita Devi Vs. State of U.P. & Ors.
469

18. The petitioners have admitted to
having accepted the compensation in
respect of their land which was subject
matter of acquisition. The additional benefit
by way of allotment of developed abadi
plot which is sought by the petitioners not
being founded on any legally enforceable
right no mandamus can be claimed for
grant of such benefit.

19. In view of the foregoing
discussion, the petitioners are not entitled
to reliefs which have been sought.

20. The writ petition thus fails and is,
accordingly, dismissed.
----------
(2022)04ILR A469
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.04.2022

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ C No. 26269 of 2020

Amita Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mukul Kumar Sharma, Rakesh Kumar
Srivastava

Counsel for the Respondents:
C.S.C.

Civil Law - Constitution of India, 1950 -
Article 226, Essential Commodities Act,
1955
-
Section
3
-
U.P.
Essential
Commodities (Regulation of Sale and
Distribution Control) Order, 2016 - Clause
2(I), 8(6), 12: - Validity of Cancellation
Order of Fair Price Shop License &
dismissal of statutory Appeal - an
inspection carried out by a 'Minority
Welfare Officer' - Show cause notice -
reply
submitted
-
not
considered
-
Petitioner's License of Fair Price Shop was
cancelled relying upon the inspection in
question - statutory Appeal dismissed -
writ petition - inspection in question
carried out without there being such
authority/ delegated power as per Clause
2 (I) under 'Designated Authority' -
'delegatus non potest delegare' - hence,
impugned orders are set aside. (Para - 4,
11, 12, 18)

Writ Petition Allowed. (E-11)

List of Cases cited: -

1. St. of Bombay Vs Shiva Balak (AIR 1965 SC
661),

2. NGEF vS Chandra (2005 Vol. 8 SCC 219),

3. Writ C No. 12696 of 2009 (Mohd. Suaif & anr.
Vs St. of UP & ors.Decided on 07.05.2019.

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard learned counsel for the
petitioner and the learned Additional Chief
Standing Counsel.

2. The present petition has been filed
challenging the order dated 14.11.2018
whereby the fair price shop license of the
petitioner has been cancelled as well as the
order dated 14.02.2020 whereby the appeal
preferred against the cancellation order was
rejected.

3. The facts, in brief, are that the
petitioner was a fair price shop license
holder having a shop situate at Tahsil
Mahmoodabad District Sitapur. It is stated
that on the basis of an inspection carried
out by the 'Minority Welfare Officer',
Sitapur on 06.04.2017, an opinion was
formed that the petitioner was not running
the shop properly and certain discrepancies
were found in the said inspection carried
470 INDIAN LAW REPORTS ALLAHABAD SERIES
out by the Minority Welfare Officer,
Sitapur. Based upon the said, the petitioner
was issued with a show cause notice calling
upon the petitioner to show cause as to why
the steps may not be taken for cancellation
of the license. The petitioner submitted his
defense on 15.09.2017 and subsequently
thereto, an order came to be passed on
29.01.2018 cancelling the fair price shop
license of the petitioner. The said order was
challenged in an appeal which resulted in
the remand order and the matter was
remanded for decision afresh. After the
remand, a fresh order was passed on
14.11.2018 cancelling the fair price shop
license and an appeal preferred against the
said order came to be dismissed on
14.02.2020. The said orders are under
challenge in the present writ petition.

4. The counsel for the petitioner
argues that the supply, sale and distribution
of the essential commodities in the State of
U.P. is governed under the provisions of the
various Control Orders and in the present
case, the same would be governed by the
Uttar
Pradesh
Essential
Commodities
(Regulation of Sale and Distribution
Control) Order 2016 issued by the State
Government in exercise of the power under
section 3 of the Essential Commodities Act
read with notification of the Government of
India. He argues that under the said Control
Order of 2016, 'Designated Authority' is
defined under section 2(l) and reads as
under:

"2(l)
'Designated
Authority'
means any officer not below the rank of
Supply Inspector of the Food and Civil
Supplies Department in the State but for
rural Areas it also includes Assistant
Development Officer (Panchayat) or any
officer
authorized
by
the
State
Government."

5. He argues that in terms of the
Control Order various obligations have
been cast upon the license holder in respect
of distribution and sale of the essential
commodities. It also empowers the State
Government to prescribe for the procedure
to be followed by the 'designated authority'
in the event of default by the licensing
authority, for that he places reliance on
Clause No.8(6) of the Control Order. He
also placed reliance on Clause 12 of the
Control Order 2016 to argue that the power
of search and seizure is conferred upon the
Commissioner,
the
food
officer,
the
competent authority and designated officer
within the jurisdiction on which they
exercise their powers. Clause 12 of the
Control Order is quoted as under :

12. Power of search and seizure
-(1) The Commissioner, the food officer, the
competent authority and designated officer
may within his jurisdiction with such
assistance if any, as he thinks fit -

6. In the backdrop of the said, he
argues that the very initiation of the
proceedings
against
the
petitioner
is
contrary to the mandate of Clause 12 of the
Control Order 2016 inasmuch as the
inspection was carried out by the 'Minority
Welfare Officer' who is not a designated
officer as defined under Clause 2(l) of the
Control Order 2016. He further argues that
the Minority Welfare Officer is neither a
designated officer nor he has been
delegated any powers traceable to Clause
12 of the Control Order as also that there is
no power of sub-delegation available upon
the designated officer under the scheme of
the
Control
Order
or
the
Essential
Commodities Act. He argues that it is well
settled that the powers conferred upon a
particular authority can be exercised only
by the said authority and can be delegated
4 All. Amita Devi Vs. State of U.P. & Ors.
471
only if there is specific power of subdelegation
conferred
upon
the
said
authority (Delegatees non protest delegare).
He places reliance on the judgment in the
cases of State of Bombay vs. Shiva
Balak; AIR 1965 SC 661, NGEF vs.
Chandra (2005) 8 SCC 219 and the
judgement dated 07.05.2019 of this court
in
Writ
-C
No.
12696
of
2009
(Mohammad Suaif and another vs. State
of U.P. and others).

7. He further argues that even
otherwise the order passed against the
petitioner is bad in law inasmuch as in the
defense the petitioner had relied upon
various affidavits given in support of the
petitioner which have been disbelieved on
the grounds which are wholly arbitrary. To
buttress his submissions, he argues that in
the order, it is recorded that the affidavits
filed in support of the defense of the
petitioner are not worthy of credence
because
they
are
not
affixed
with
photographs. He further argues that in
respect of the some of the affidavits, the
prescribed authority has formed an opinion
that the same appear to have been obtained
by misrepresentation from the deponents,
which has neither any legal basis nor any
factual basis. Thus, the said order is clearly
a result of an arbitrary exercise of the
power and deserves to be set aside. He
lastly
argues
that
in
terms
of
the
Government Order issued, it is specified
that after a reply is submitted, the same
should be got inquired into by an officer
who is higher in rank than the officer who
issued show cause notice, which has not
been done in the present case. In the light
of the said submissions, he argues that the
writ petition deserves to be allowed.

8. The Additional Chief Standing
Counsel, on the other hand, justifies the
orders
on
the
ground
that
various
allegations were levelled against the
petitioner, which after due process have
been found to be correct and thus no
interference is called for. He further argues
that the argument with regard to nonavailability of the authority/jurisdiction
were neither raised in the defense nor in the
appeal, as such, the petitioner cannot be
permitted to raise the said argument at this
stage. To conclude his submissions, he
argues that the writ petition deserves to be
dismissed.

9. I have considered the arguments
raised at the bar and perused the records.

10. Considering the objection of the
learned Additional Chief Standing Counsel
that the plea/defense regarding lack of
jurisdiction was neither raised before the
prescribed
authority
nor
before
the
appellate authority and has been raised for
the first time before this court. It is well
settled that the plea which goes to the root
of lack of substantive jurisdiction can be
raised at any stage of the proceedings, thus,
I reject the preliminary objection raised by
the Additional Chief Standing Counsel.

11. As regards the first argument, a
specific averment has been made in the writ
petition in para no. 9 with regard to lack of
jurisdiction by the inspecting authority to
which no reply has been given in the
counter affidavit. A perusal of the Control
Order
specifically
Clause
12
clearly
provides that the power of search and
seizure can be exercised only by the officer
specified therein namely the Commissioner,
food officer, the competent authority and
the
designated
officer
within
his
jurisdiction. The power of search is an
expropriatory power and has to be
interpreted strictly inasmuch as it is an
472 INDIAN LAW REPORTS ALLAHABAD SERIES
exception to the fundamental right of
carrying business and thus has to be
interpreted strictly. A plain reading of
Clause 12 read with section 2(l) makes it
clear that the Minority Welfare Officer is
neither a person specified in Clause 12 nor
a designated officer and thus the inspection
carried out by him was without any
authority of law.

12. It has been argued by the State
that the inspection was carried out under
the oral direction of the District Magistrate,
however, no provision exists either under
the Act or the Control Order empowering
the District Magistrate to delegate his
powers. The law with regard to delegation
of power is very well settled, a power can
be delegated only if permissible and up to
that extent and without there being such
power, the powers conferred upon the
authority cannot be delegated (Delegatees
non protest delegare) as laid down in the
cases of State of Bombay vs. Shiva
Balak; AIR 1965 SC 661, NGEF vs.
Chandra (2005) 8 SCC 219 and the
judgement dated 07.05.2019 of this court
in
Writ
-C
No.
12696
of
2009
(Mohammad Suaif and another vs. State
of U.P. and others).Thus, on the first
ground itself, I am inclined to hold that the
proceedings initiated by an inspection of
'Minority
Welfare
Officer'
which
culminated in the impugned order are
clearly unsustainable.

13.

Considering
the
second
submission that the prescribed authority has
erred in disbelieving the affidavits, the
counsel for the petitioner places reliance on
the judgment of this Court in the case of
Balram Das vs. State of U.P. decided on
11.04.2022 in Writ-C No.20446 of 2017,
wherein this court has held that in the event
the prescribed authority disbelieves any
evidence given in support of the defense,
he
should
call
for
a
better
evidence/explanation in that regard from
the person concerned. In the present case,
the reasons prescribed for disbelieving the
affidavits
that
photographs
were
not
affixed, clearly cannot be termed as a
proper exercise of the power by the
prescribed authority. In any event, if the
prescribed
authority
had
reasons
to
disbelieve the said affidavits, he ought to
have called for better affidavits which has
not been done, as is clear from the records.
Thus, on that ground also, the orders are
unsustainable and are liable to be set aside.

14. I am not going into the third
question in view of the first two questions
being decided in favour of the petitioner.
For the reasons recorded above, the writ
petition deserves to be allowed. The orders
dated 14.11.2018 and 14.02.2020 are set
aside.

15. The writ petition stands allowed.
----------
(2022)04ILR A472
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.04.2022

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.

Writ C No. 33469 of 2021

Anuj Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ram Pratap Yadav, Sri Devbratt Yadav

Counsel for the Respondents:
C.S.C.