# Smt. Nilam Devi v. State Of U.P. & Ors

- **Citation:** (2016) 8 ILRA 266
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-23
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-nilam-devi-v-state-of-u-p-ors-44242
- **Pages:** 8

## Text

266 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 266
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.08.2016

BEFORE

THE HON'BLE RAN VIJAI SINGH, J.

Writ C No.- 32546 Of 2016
&
Connected With Other Cases

Smt. Nilam Devi ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Petitioner:
Ajay Singh Sengar

Counsel for Respondents:
C.S.C., Anand Kumar Yadav
Held

The District Supply Officer (DSO) has jurisdiction to suspend and cancel fair price shop
agreements even in rural areas, as he falls within the definition of "competent authority" under the U.P.
Scheduled Commodities Distribution Order, 2004.
The powers of District Magistrate, District Supply Officer, and Sub-Divisional Officer are
concurrent and overlapping, and can be exercised simultaneously regarding inspection, suspension, and
cancellation of fair price shops.
The argument that only Sub-Divisional Officer has authority in rural areas is legally unsustainable.
Government Orders issued under statutory control orders have overriding effect over
administrative circulars (e.g., Food Commissioner's letter dated 25.01.2006).
The U.P. Scheduled Commodities Distribution Order, 2004 (issued under the Essential
Commodities Act, 1955) has statutory force and prevails over inconsistent executive instructions.
The executive power under Article 162 of the Constitution extends to issuing binding
government orders, especially when backed by statutory authority.
Suspension orders cannot be interfered with merely on jurisdictional grounds when authority exists under
statutory framework.
Courts may refrain from interference when:
Inquiry is pending, and
Petitioners have opportunity to respond.
Authorities are directed to complete proceedings within a reasonable time (2 months / 6 weeks) to
ensure procedural fairness.

CASE LAW CITED

Garahan Ram v. State of U.P., 2013 (3) ADJ 314
8 All. Smt. Nilam Devi Vs State Of U.P. & Ors.
267
(Delivered by Hon'ble Ran Vijai Singh, J.)

1. Heard Sri Ajay Sengar, learned counsel for the petitioner in Writ-C No. 32546 of 2016
(Smt. Nilam Devi Vs. State of U.P. and others), Sri Sanjay Singh, learned counsel in Writ-C No.
25347 of 2016 (Harveer Singh Vs. State of U.P. and others),Sri Ashok Malaviya, learned counsel
in Writ C No. 35046 of 2016 (Ram Sajiwan Vs. State of U.P. and others) and Ms. Swati Agrawal,
learned counsel in Writ C No. 34430 of 2016 (Smt. Zeeshan Fatma Vs. State of U.P. And others).

2. Through these writ petitions, orders of suspension of fair price shop have been
challenged. While arguing the matter, argument was advanced by learned counsel for the
petitioners that the order of suspension has been passed by the District Supply Officer and the shop
is situated in the rural areas, therefore the order of suspension is without jurisdiction.

3. Taking note of the submissions of learned counsel for the petitioners, on 19.7.2016, this
Court has passed the following order :-

Heard Sri Ajay Singh Sengar, learned counsel for the petitioner, learned Standing
Counsel appearing for the State-respondents and Sri Anand Kumar Yadav, learned counsel for the
gaon sabha.

Number of cases are coming before this Court with respect to the fair price shop
running in the rural areas, where the orders of suspension and cancellation are being passed by
the concerned District Supply Officer.

It has been argued by the learned counsel for the petitioner that so far as the rural
area is concerned, it is the Sub Divisional Officer concerned who enters into the agreement to run
fair price shop with the fair price shop agent and he has the power to appoint, suspend and cancel
the agreement to run fair price shop. So far as the District Supply Officer is concerned, his
jurisdiction is confined to suspend and cancel the agreement to run fair price shop situated in the
urban areas.

Learned standing counsel taking shelter of the U.P. Schedule Commodities Control
Order, 2004 has tried to submit that the District Supply Officer can also pass an order of
suspension and cancellation with respect to rural areas.

It would be appropriate that the Principal Secretary (Food and Civil Supplies),
Government of U.P., Lucknow shall file an affidavit clarifying the position with regard to the
exercise of the power of suspension and cancellation of the agreement to run fair price shop in
urban and rural areas.

As prayed, put up this case as fresh on 3.8.2016 as fresh.
268 INDIAN LAW REPORTS ALLAHABAD SERIES

It may be clarified that I have not stayed the proceeding of cancellation of
agreement to run fair price shop with respect to the petitioner. Since the petitioner has already
filed his reply, it will be open for the District Supply Officer concerned to take decision thereon,
provided he has jurisdiction to do so.

4. Pursuant thereto, learned Standing Counsel has filed an affidavit of Principal Secretary,
Food and Civil Supplies. For the purposes of the case, the averments made in paragraphs 7, 8 and
10 of the affidavit of the Principal Secretary are relevant which are reproduced herein under :-

7. That the deponent respectfully submits that Cluase-12 of the Government Order
No. 2715 dated 17.8.2002 provides the power to District Supply Officer to inspect the shops lying
in the rural area and in case any irregularity is found during the inspection, he is also empowered
to take punitive action against the agent.

8. That in furtherance thereof another Government Order No. 3126 dated
30.9.2004 also refers to the powers vested with the officers namely District Magistrate and District
Supply Officer to

inspect all the shops pertaining to PDS in rural as well as urban areas of a district.

10. That, the aforesaid Government Order dated 30.9.2004 also provides that the
power of the Sub-Divisional Officer to inspect and take punitive actions pertaining to suspension
and cancellation shall remain intact and that the power of District Magistrate/District Supply
Officer shall run concurrently and parallel to the power of the Sub-Divisional Officer, so far as it
pertains to the inspection/suspension/cancellation of the shops in rural areas.

5. The reply to the aforesaid affidavit has been filed by learned counsel for the petitioner in
Writ - C No. - 32546 of 2016.

6. In paragraph 7 of the affidavit of Principal Secretary, reliance has been placed upon the
government order dated 17.8.2002. In paragraph 12 of the government order dated 17.8.2002, the
District Supply Officer has also been authorized to inspect the fair price shop situated in the rural
areas and in the event of finding any irregularity in distribution of scheduled commodities, power
has also been conferred to take strict action. For ready reference, paragraph 12 of the government
order dated 17.8.2002 is reproduced herein under :-

** ftykiwfrZ vf/kdkjh dks ;g vf/kdkj gksxk fd xzkeh.k {ks= dh nqdkuksa dk fujh{k.k rFkk vfu;ferrk ik;s
tkus ij nqdkunkjksa ds fo:) n.MkRed dk;Zokgh dj ldrs gSA**

7. The reliance has also been placed upon the government order dated 30.9.2004. The
relevant portion of the aforesaid government order reads as under :-

** 2- fofHkUu ftyksa }kjk 'kklu ls xzkeh.k {ks= ,oa 'kgjh {ks= esa
8 All. Smt. Nilam Devi Vs State Of U.P. & Ors.
269

mfpr nj nqdkuksa ds n.MkRed dk;Zokgh 1⁄4fuyEcu@fujLrhdj.k vkfn1⁄2 ds vf/kdkj dh fLFkfr Li"V djus
ds lEcU/k es ekxZn'kuZ dh vis{kk dh x;h gSaA mDr ds ifjizs{; esa eq>ls ;g dgus dh vis{kk dh x;h gS fd ftykf/kdkjh
rFkk ftykiwfrZ vf/kdkjh dks lEiw.kZ ftys ds 1⁄4ftlesa uxjh; ,oa xzkeh.k nkuks {ks= lfEefyr gksaxs1⁄2 yf{kr tu forj.k iz.kkyh
ds lHkh nqdkuksa ds fujh{k.k rFkk muds fo:) n.MkRed dk;Zokgh 1⁄4fuYkEcu@fujLrhdj.k vkfn1⁄2 djus dk vf/kdkj gksxkA
mi ftykf/kdkjh dks vius rglhy esa fLFkr lHkh nqdkuksa ds fujh{k.k rFkk muds fo:) n.MkRed dk;Zokgh
1⁄4fuYkEcu@fujLrhdj.k vkfn1⁄2 djus dk vf/kdkj ;Fkkor~ jgsxkA **

8. Learned counsel for the petitioner submitted that there is a overlapping of the power in
between the District Magistrate, District Supply Officer and the Sub-Divisional Officer. In their
submissions, since in the rural areas, an agreement is executed for running the fair price shop in
between the Sub-Divisional Officer and the fair price shop agent, therefore it is the Distrist
Magistrate and the Sub-Divisional Officer who can inspect and cancel the agreement of the fair
price shop agent and the District Supply Officer can neither suspend nor cancel the agreement.

9. Sri Vishal Tandon, learned Standing Counsel appearing for the State respondents, in
addition to what has been stated in the counter affidavit, has invited attention of this Court towards
Para 2 (i) of the U.P.Scheduled Commodities Distribution Order, 2004 (hereinafter referred to as
'Distribution Order, 2004') which defines the competent authority, which means Collector and
includes Additional District Magistrate, District Supply Officer, Deputy Town and

Rationing Officer and Sub-Divisional Officer or Area Rationing Officer. He also
submits that under Sub-Para 3 of Para 28 of the Distribution Order 2004, provision of appeal has
been made against the order of the competent authority. In addition to that, he has also placed
reliance upon the judgment of the Division Bench of this Court in Garahan Ram Vs. State of U.P.
(2013 (3) ADJ 314).

10. It is not in dispute that the petitioners are the fair price shop agents and their
appointments are made and regulated through government order. Initially after the repeal of Uttar
Pradesh Scheduled Commodities (Regulation of Distribution) Order, 1989, U.P. Scheduled
Commodities Distribution Order 1990, (in short 'Distribution Order, 1990') had come into force and
in view of the Order 4 of the Distribution Order, 1990, a government order dated 3.7.1990 was
issued. In the aforesaid government order, procedure for appointment of fair price shop agent and
regulation of the distribution of scheduled commodities have been detailed. After the Distribution
Order 1990, distribution order has come into force known as U.P. Scheduled Commodities
Distribution Order, 2004. Sub-Order 1 of Order 4 of the Distribution Order, 2004 provides that a
fair price shop shall be run through such person and in such manner as the Collector, subject to the
directions of the State Government may decide. Nothing has been brought to my notice that after
commencement of the Distribution Order, 2004, any new government order has been issued
relating to appointment of fair price shop agent. Learned Standing Counsel has only placed reliance
upon the provisions of the government orders dated 3.7.1990, 17.8.2002 and 30.9.2004. In the
government order dated 17.8.2002, in para 3, it is mentioned that the provisions of the government
order dated 3.7.1990 will remain in force which are not inconsistent with the provisions contained
in the government order dated 17.8.2002. It may be noticed that when the government order dated
270 INDIAN LAW REPORTS ALLAHABAD SERIES

3.7.1990 was issued, along with the aforesaid government order, a format of the agreement was
also annexed. For the purposes of the case, para 16 of the agreement is relevant, which is
reproduced herein under :-

**16- ftyk eSftLVsaV@ftyk iwfrZ vf/kdkjh@uxj jk'kfuax vf/kdkjh@vfrfjDr ftyk vf/kdkjh 1⁄4vkiwfrZ1⁄2
{ks=h; [kkn~; fu;a=d dks bl vuqcU/k i= dks fdlh Hkh le; fouk dkj.k crk;s gq;s lekIr djus dk vf/kdkjh gksxkA **

11. However, after issuance of the government order dated 17th August, 2002 and
commencement of the Distribution Order, 2004, the conditions of the agreement have been slightly
changed. The Condition No. 22 (1) of the new format of agreement is reproduced herein under :-

**221⁄411⁄2 ;fn vkSj tc dHkh ,rn~ iwoZ mfYyf[kr 'krksZ vkSj izfrcU/kksa esa ls fdlh dk Hkh vfHkdrkZ }kjk
mYya?ku fd;k tk; ok@vkSj vuqikyu fd;k tk; rks l{ke izkf/kdkjh] fyf[kr :i ls Li"Vr% dkj.k crkrs gq, vfHkdrkZ
}kjk tek izfrHkwfr dh jkf'k vius foosdkuqlkj vkaf'kdr vFkok lEiw.kZ :i ls 'kkluj ds i{k esa tCr dj ldrk gS vFkok
bl vuqcU/k i= dks fuyfEcr djrs gq, vfHkdrkZ ds fo:) vxzsrj tkWp ,oa foHkkxh; dk;Zokgh la;ksftr djkdj izfdz;k esa
yk ldrk gS vkSj foHkkxh; dk;Zokgh dh izfdz;k esa vfHkdrkZ dks mlds fo:) lk{;ksa dk voyksdu djus dk volj iznku
djrs gq, vfHkdrkZ dks viuk i{k izLrqr djus dk volj iznku djrs gq, xq.kkoxq.k ds vk/kkj ij

fopkjksijkUr vfHkdrkZ dk vuqcU/k; fujLr rd dj ldrk gS rFkk lEiw.kZ izfrHkwfr jkf'k 'kklu ds i{k esa
tCr dj ldrk gSA **

12. From the perusal of the Condition No. 16 of the government order dated 3.7.1990, it
would transpire that earlier under the condition of the agreement, there was a provision that the
District Magistrate, District Supply Officer, City Rationing Officer, Additional District Magistrate
(Supply) and Regional Food Officer could cancel the agreement without assigning any reason.
Whereas in view of the Condition No. 22 (i) of the recent agreement, for the purposes of the
cancellation of the agreement, fair price shop agent has to be provided an opportunity to rebut the
charges.

13. From going through the government order dated 3.7.1990 and the Distribution Order,
2004, it would transpire that the power of suspension and cancellation has through out been
conferred upon the District Magistrate, District Supply Officer, Sub-Divisional Officer and other
officers. Para 2 (i) of the Distribution Order, 2004 talks about the competent authority and it is the
competent authority under the Distribution Order, 2004 who can suspend and cancel the agreement
of the person. Since the competent authority includes the District Supply Officer too, therefore the
argument of learned counsel for the petitioner that the District Supply Officer has no jurisdiction to
suspend the agreement cannot be sustained in the eyes of law.

14. Learned counsel for the petitioners, placing reliance upon the Condition Nos. 5 and 6 of
the order/lettter dated 25.1.2006 issued by the Food Commissioner, have submitted that in the rural
areas, it is the Sub-Divisional Officer which has power to appoint, suspend and cancel the
agreement of fair price shop agent and in the urban areas, it is the District Supply Officer who has
the same power. In their submissions, the Food Commissioner has issued letter/order on 25.1.2006,
therefore this will prevail over all the government orders including the Distribution Order, 2004.
8 All. Smt. Nilam Devi Vs State Of U.P. & Ors.
271
For appreciation, Condition Nos. 5 and 6 of the letter/order dated 25.1.2006 is reproduced herein
under :-

**5- xzkeh.k {ks= es mfpr nj fodszrk dh fu;qfDr@fuyacu fuLrhdj.k nqdkunkj dks [kk|kUu@phuh ,oa
feV~Vh rsy ds vkoaVu dk dk;Z miftykf/kdkjh }kjk lqfuf'pr fd;k tkrk gS] blfy, mudk nkf;Ro gSa fd og {ks= ds
mfpr nj fodzsrkvksa ls vuqcU/k dh 'krkZs dk iw.kZ ikyu djk;sa rFkk miyC/k lalk/kuksa }kjk og forj.k O;oLFkk ij dMh n`f"V
j[ksaA vius {ks= esa jk'ku ekfQ;kvksa dks iuius u nsaA ;Fkk vko';d dkuwuh dk;Zokgh djuh iMs rks vo'; dh tk;sA

tgkW dgha [kk|kUu ds O;orZu ds xaHkhj ekeys laKku esa vk;s ogka ij oLrq vf/kfu;e ds varxZr dk;Zokgh
ds vfrfjDr fizosU'ku vkWQ fMVsa'ku ,DV 1980 ds varxZr nks"kh O;fDr dks fu:) djus dh Hkh dk;Zokgh dh tk;sA

6- ftyk iwfrZ vf/kdkjh dks 'kgjh {ks=ksa ds mfprnj fodzsrkvksa ij dMh n`f"V j[kuh gksxh rFkk fodzsrkvksa ls
vuqca/k dh 'krksZ dk iw.kZ ikyu djkuk gksxk drZO; ,oa nkf;Ro dh vogsyuk v{kE; gksxhA **

15. Learned Standing Counsel appearing for the State respondents submitted that in fact,
the alleged letter/order of the Food Commissioner is a circular, therefore the government orders
issued from time to time will have overriding effect over the circular. Taking shelter of Article 162
of the Constitution of India, he submitted that the power of executive is co-extensive and it has also
power to legislate upto some extent. In his submissions, the government order issued from time to
time under the provisions of relevant Control Orders regulating the distribution of scheduled
commodities will also have overriding effect and will have statutory force, therefore the
government orders as well as Distribution Order, 2004 will prevail over the alleged order/letter of
the Food Commissioner dated 25.1.2006.

16. I find substance in the submissions of learned Standing Counsel.

17. I am of the opinion that the government order issued from time to time including the
Distribution Order, 2004 will have overriding effect over the order/letter of the Food
Commissioner, therefore also the argument of learned counsel for the petitioner that in the rural
areas, the District Supply Officer has no power to suspend/cancel the agreement of the fair price
shop agent is unsustainable.

18. Here in this case, the view taken by me also finds support from the Division Bench
judgment of this Court in the case of Garahan Ram (supra). Paragraph 6 of the aforesaid judgment
is relevant for the aforesaid cases, which is reproduced hereinunder :-

6. The U.P. Scheduled Commodity Distribution Order, 2004 has been issued by the
State Government in exercise of powers under section 3 of the Essential Commodities Act, 1955.
Under the said order of 2004, the State Government is empowered to issue orders regulating
inspection and monitoring of the fair price shops. The power of

the State Government is clearly provided for in clauses 21 and 23 of 2004 Order.
The State Government having specifically provided for empowering the District Supply Officer and
272 INDIAN LAW REPORTS ALLAHABAD SERIES

the District Magistrate to take all action including suspension and cancellation, the submission of
the petitioner that the District Supply Officer has no jurisdiction to suspend the fair price shop
agreement is without any substance.

19. In view of foregoing discussions, I am of the view that the District Supply Officer has
also power to suspend and cancel the agreement of the fair price shop agent in the rural areas.

20. The attention of this Court has also been drawn towards the government order dated
26.11.2014 in which it is provided that the proceeding of cancellation of the agreement of fair price
shop agent is to be concluded within a period of four weeks and here in all the cases, the
suspension orders are older than four weeks, therefore too, there is no occasion to interfere with
those suspension orders.

21. On being confronted as to whether in these cases, the petitioners have filed their reply
to the show cause notice, learned counsel for the petitioners, except the petitioner in Writ-C No.
25347 of 2016, have submitted that they have filed their reply.

22. These writ petitions are disposed of with the direction to the District Supply Officer to
conclude the inquiry expeditiously as early as possible within a period of two months from the date
of filing of certified copy of the order of this Court.

23. So far as the petitioner in Writ-C No. 25347 of 2016 is concerned, this writ petition is
also disposd of with the liberty to the petitioner to file his reply along with certified copy of the
order of this Court. In case, such reply is filed, the District Supply Officer shall conclude the
inquiry within a period of six weeks from the date of filing of the reply.
------------
8 All. M/S U.P. State Sugar And Cane Development Corp. Ltd. & Anr. Vs Assistant Labour
 Commissioner & Ors.
273

(2016) 8 ILRA 273
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.08.2016

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ C No.- 34041 Of 2016
&
Writ C No.- 34496 Of 2016

M/S U.P. State Sugar And Cane Development Corp. Ltd. & Anr. ...Petitioners
Versus
Assistant Labour Commissioner & Ors. ...Respondents

Counsel for Petitioners:
Shakti Swarup Nigam

Counsel for Respondents:
C.S.C., Syed Mohd. Fazal

In the present writ petition order dated 6.6.2016 passed by the Deputy Labour Commissioner under Section
6-H(1) of the U.P. Industrial Disputes Act, 1947 is under challenge. The moot question, which arises for
consideration of this Court in the present matter, is as to whether the Deputy Labour Commissioner exercising
his jurisdiction under Section 6-H(1) of the U.P. Industrial Disputes Act has any power to review his order?

From the nature of proceedings and jurisdiction conferred thereunder, it is not in dispute that the Deputy
Labour Commissioner exercises quasi-judicial powers. Learned counsel for the petitioner has submitted that
under the provisions of the Act, as well as the Rules, there exists no power of substantive review available to
the Deputy Labour Commissioner.

This Court in a recent decision in M/s. Indo Gulf Industries Ltd. Vs. State of U.P. And others, reported in 2016
(148) FLR 991 held that "The legal position summarised above, compels me to hold that though the
prescribed authority had no power to review its own decision but had the power to consider the applications
for recall of the orders on the limited grounds on which procedural review is permissible. Therefore, ignoring
the substantive part of the review and without touching the merits of the orders could have considered the
recall applications within the limited scope of violation of principles of natural justice. Thus, it committed
material irregularity in rejecting the applications as not maintainable for want of power to review."

Court held that neither the review application filed by the respondent no.2 was maintainable before the
Deputy Labour Commissioner nor he had any jurisdiction to review his order passed previously. The orders
impugned dated 6.6.2016, consequently, are wholly without jurisdiction, and are set aside.

The writ petitions stand allowed.

(Delivered by Hon'ble Ashwani Kumar Mishra, J.)