ORDER
The present petition under Article 226 of the Constitution of India has been filed seeking following reliefs :
1. That this Hon'ble Court may kindly be pleased to hold that the order of 2009 and stipulations thereof cannot have a retrospective effect in absence of any express provision to the effect in the order of 2009.
2. That, this Hon'ble Court may kindly be pleased to hold that the allotment orders issued under the Scheme of 1991, are saved as per Clause-15 of the order of 2009.
3. That this Hon'ble Court may kindly be pleased to hold that the allotment issued in favour of petitioners society under the Scheme of 1991 is saved and further the Hon'ble High Court may kindly be pleased to direct the respondents to not to cancel the fair price shop allotment orders issued in favour of the petitioners society.
4. That this Hon'ble Court may kindly be pleased to quash the notice dated 14/1/2015 (Annex.P/9)
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5. Any other relief/ reliefs order / orders, direction / directions which this Hon'ble Court may deems fit and proper may kindly be granted to the petitioner including the cost of petition.
It has been contended by learned counsel for the petitioner that the petitioner has been allotted fair price shop under the M.P. (Food Stuff) Public Distribution Scheme 1991. When the Madhya Pradesh Public Distribution System (Control) Order 2009 came into force, the petitioner's licence has been cancelled vide Annexure P/9 dated 14.01.2015 without any show cause notice on the ground that as per the Scheme the allotment is to be given to the Primary Agricultural Cooperative Societies and Laghu Vanopaj Sahakari Samiti. It is submitted that the licences which were granted under the earlier Scheme has been saved by the repeal and saving of the PDS
2009.
Learned counsel for the petitioner has invited attention of the Court towards repeal and saving clause and also submitted that this Court in similar set of facts has considered the matter and directed the authority to see whether the licence of the petitioner is saved by repeal and saving Clause of 2009, till then the interim orders passed by this Court has been continued. Per contra learned counsel for the respondent has submitted that as per the new scheme the allotment is to be done in favour of Societies as mentioned hereinabove, therefore, the impugned order is justified. Heard learned counsel for the parties and perused the record. It is evident from the impugned order that the order has been passed without show cause notice to the petitioner. The authority holding that as per the new scheme the fair price shop is to be given to the societies which are
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mentioned in the scheme of 2009 but it has not been considered that the allotment which was done prior to 2009 by 1991 Scheme, they are saved by the repeal and saving clause of 2009.
A Division Bench of this Court in the case of Shaktipunj Anusuchit Jati Mahila Bauddesiya Sahakari Sansthan, Maryadit Gram Panchayat Daidari Vikas Khan, Ashok Nagar vs. State of M.P. (W.A.No.52/2012 decided on 02.02.2012) has held as under :
"7. In the present case, the appellant challenged the cancellation of fair price shop on the grounds 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. With the aforesaid, this writ appeal stands disposed of."
In view of the analysis of the fact and law this court is of the considered opinion that the impugned order dated 4/1/2015 (Annexure P/9) has been passed violating the principle of natural justice, therefore, is hereby quashed.
The matter is relegated to the authority to consider the case of the petitioner whether the allotment prior to 2009 is saved by repeal and saving
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(DEEPAK KHOT)
JUDGE
of PDS 2009, till then, the interim relief granted by this Court shall continue. The authority is expected to consider the matter and decide the same within a period of three months from the date of production of certified copy of this order after giving opportunity of hearing to the petitioner. With the aforesaid, the petition is disposed of.
anand
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