{"id":122682,"date":"2007-07-12T00:00:00","date_gmt":"2007-07-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/subhash-sahkari-upbhokta-bhandar-vs-state-of-m-p-and-ors-on-12-july-2007"},"modified":"2015-05-05T22:38:43","modified_gmt":"2015-05-05T17:08:43","slug":"subhash-sahkari-upbhokta-bhandar-vs-state-of-m-p-and-ors-on-12-july-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/subhash-sahkari-upbhokta-bhandar-vs-state-of-m-p-and-ors-on-12-july-2007","title":{"rendered":"Subhash Sahkari Upbhokta Bhandar … vs State Of M.P. And Ors. on 12 July, 2007"},"content":{"rendered":"
Madhya Pradesh High Court<\/div>\n
Subhash Sahkari Upbhokta Bhandar … vs State Of M.P. And Ors. on 12 July, 2007<\/div>\n
Equivalent citations: 2007 (4) MPHT 125<\/div>\n
Author: A M Naik<\/div>\n
Bench: A M Naik<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 Abhay M. Naik, J.<\/p>\n
1. Petitioner is a Co-operative Society registered under the provisions of Madhya Pradesh Co-operative Societies Act, 1960 with Registration No. 124 SGR. It was allotted a fair price shop at Subhash Nagar Ward, Sagar by the Food Controller, Sagar (respondent No. 3) in the year 1964. Petitioner\/Society was running the shop since then in an uninterrupted and continuous manner and without interruption. One Rajendra Kumar Ahirwar was its Manager in the year 1998. On account of certain irregularities committed by Rajendra Kumar, the licence of the petitioner Society of fair price shop was suspended vide order dated 23-1-1998 and the shop was attached to Kasturba Gandhi Mahila Prathmik Sahkari Upbhokta Bhandar, Moti Nagar, Sagar. A resolution was passed on 3-2-1998 by the petitioner Society removing thereby Rajendra Kumar Ahirwar from the services on account of irregularities committed by him. Rajendra Kumar Ahirwar was prosecuted in the Court of Special Judge, Sagar and was convicted under Section 3\/7 of Essential Commodities Act vide judgment dated 7-9-1999 and was sentenced to imprisonment and fine. On account of the illegalities committed by Rajendra Kumar Ahirwar, the allotment of shop to the petitioner Society was cancelled vide order dated 11-1-2000 contained in Annexure P-6. Thereafter, on 19-9-2002 new election of the office bearers of the petitioner Society took place and the entire body was changed as revealed in the result declared on 26-9-2002 marked as Annexure P-7. Assistant Registrar of Co-operative Societies, Sagar vide Annexure P-8, dated 3-1-2003 recommended for allotment of the said fair price shop in favour of the petitioner. Pursuant thereto, the Food Controller, Sagar (respondent No. 3) issued an order of allotment on 6-3-2003 contained in Annexure P-9 of the said fair price shop in favour of the petitioner. Order contained in Annexure P-9 was challenged by Kasturba Gandhi Mahila Prathmik Sahkari Upbhokta Bhandar, Moti Nagar, Sagar before the Addl. Collector, Sagar. Although its locus standi to file an appeal was disputed, the Addl. Collector invoking the provisions of repealed scheme of 1981 quashed the order of allotment vide his order dated 22-4-2003 marked as Annexure P-10.\n<\/p>\n
2. Petitioner challenged the order contained in Annexure P-10 in W.P. No. 2443\/03. During the pendency of the petition, the fair price shop in question was attached with respondent No. 4. On 16-3-2004 the said writ petition was disposed of with a direction that the petitioner may file an appropriate application for allotment of shop before respondent No. 3 in accordance with law and the same would be liable to be decided afresh in accordance with law (Annexure P-ll). In compliance, the petitioner made an application before respondent No. 3 on 22-3-2004 alongwith order of this Court contained in Annexure P-ll. The Food Controller asked the Deputy Registrar, Co-operative Societies, Sagar to send recommendations for allotment of fair price shop in question. Pursuant thereto, Deputy Registrar of Co-operative Societies, Sagar recommended respondent No. 4 for allotment of the subject fair price shop in its favour. Thereafter, the petitioner made an application to the Deputy Registrar, Co-operative Societies, Sagar seeking allotment of the fair price shop in its favour. It was forwarded to respondent No. 3 vide Annexure P-14. Removal of the earlier Manager and appointment of new Manager was also informed simultaneously.\n<\/p>\n
3. Respondent No. 3 vide order Annexure P-16, dated 17-5-2004 rejected the application of the petitioner Society for allotment of fair price shop. Appeal preferred against the same has also been dismissed by the Addl. Collector, Sagar vide order contained in Annexure P-17, dated 17-7-2004. On the contrary, the fair price shop of Subhash Nagar Ward has been attached by respondent No. 3 vide his order Annexure P-19, dated 9-3-2004 with respondent No. 4. it has been contended in the petition that the orders contained in Annexures P-16, P-17 and P-19 are illegal, arbitrary besides being contrary to the provisions of Madhya Pradesh (Khadya Padarth) Sarvajanik Nagrik Poorti Scheme, 1991. Accordingly, the petitioner has prayed for quashment of the aforesaid impugned orders.\n<\/p>\n
4. Respondent Nos. 1, 2 and 3 have submitted joint return admitting thereby that the petitioner Society was allotted the fair price shop of Subhash Nagar Ward (of Subhash Sahkari Upbhokta Bhandar, Sagar) which was the primary Co-operative Society of Subhash Nagar Ward, Sagar. Manager of the Society namely Rajendra Kumar Ahirwar was found to be involved in many irregularities therefore, the licence of the society was duly suspended. Rajendra Kumar was convicted by the Court of Special Judge, Sagar on 9-9-1999. The subject fair price shop was again granted to the petitioner Society on 7-3-2003 which was challenged in the Court of Upper Collector, sagar, which quashed the order of allotment in favour of the petitioner on 22-4-2003. This order is placed on record as Annexure R-l. Consequently, the fair price shop was attached with Kasturba Gandhi Mahila Prathmik Sahkari Upbhokta Bhandar, Moti Nagar, Sagar. This was challenged by the petitioner in W.P. No. 2443\/03. On account of certain irregularities committed by Kasturba Gandhi Mahila Prathmik Sahkari Upbhokta Bhandar, Moti Nagar, Sagar, attachment of the fair price shop in its favour was cancelled and the same has been attached with respondent No. 4 vide order dated 10-3-2004 contained in Annexure R-2. In the meantime, W.P. No. 2443\/03 was disposed of with a liberty to the petitioner to submit an application for allotment which was liable to be considered and decided afresh within a period of 60 days. On the application having been filed guidance was sought from the District Registrar, Sagar who gave his opinion vide Annexure R-5, dated 12-5-2004 in favour of respondent No. 4. Since, there were two Co-operative Societies (i.e., petitioner and respondent No. 4), the Food Controller, Sagar rightly passed an order on 17-5-2004 in favour of respondent No. 4 marked as Annexure R-6. It is further contended that in the Scheme of 1991, there is a provision that if there are more than one Society willing to take the fair price shop situated in the ward then the opinion should be obtained from the District Registrar about the Society to which the shop may be allotted. The Scheme has been placed on record by the petitioner as well as respondents as Annexures P-18 and R-7. Thus, it is contended that impugned orders are in consonance with the said scheme and no illegality or arbitrariness has been committed by the answering respondents.\n<\/p>\n
5. Respondent No. 4 has not chosen to submit its return.\n<\/p>\n
6. Shri V.S. Choudhary, learned Counsel for the petitioner, Shri Vinod Mehta, learned Govt. Advocate for respondent Nos. 1, 2 and 3 and Shri Harpreet Ruprah, learned Counsel for the respondent No. 4 made their submissions which have been considered in the light of the documents available on record and the legal provisions of law governing the situation.\n<\/p>\n
7. Allotment of fair price shop of Subhash Nagar Ward has been denied to the petitioner on the ground that the Manager of the petitioner Society had committed illegalities and irregularities and was convicted by the Court of Special Judge, Sagar vide judgment dated 9-9-1999. The allotment in favour of the petitioner was cancelled on account of this decision and the petitioner was not found entitled to allotment on account of the same.\n<\/p>\n
8. Shri Choudhary, learned Counsel contended that the petitioner Society cannot be deprived of its right permanently to seek allotment of fair price shop in its favour. It is true that the earlier Manager, namely, Rajendra Kumar Ahirwar was found guilty under Section 3\/7 of the Essential Commodities Act and was sentenced to imprisonment and fine. However, it is equally true that Rajendra Kumar Ahirwar was found guilty in his individual capacity as Manager of the petitioner Society. He was duly removed from the service of the petitioner Society vide resolution dated 3-2-1998 contained in Annexure P-4 and another Manager, namely, Kamal Kumar was duly appointed on 10-3-2002. Thereafter, on 19-8-2002 the entire body of Executives of petitioner Society was changed by way of election of the office bearers as revealed in Annexure P-7. Right of the petitioner Society to seek allotment of fair price shop flows from the Madhya Pradesh (Khadya Padarth) Sarvajanik Nagrik Poorti Scheme, 1991 (hereinafter referred to as ‘Scheme of 1991’). This Scheme does not contain any provision to disqualify, permanently, a Cooperative Society from seeking allotment of fair price shop if its Manager commits offence under any provision of law including those of Essential Commodities Act. In the absence of any such provision, the application of the petitioner Society for allotment of fair price shop could not have been validly rejected on this count. Moreover, the petitioner submitted W.P. No. 2443\/2003 with averments that after removal of Rajendra Kumar from the post of Manager, its application for allotment of fair price shop ought to have been considered on its own merits. This Court while disposing of this petition on 16-3-2004 considered the contentions of the petitioner and directed the respondent No. 3 to consider and decide the prayer of the petitioner for allotment of fair price shop in accordance with law afresh expeditiously preferably within a period of 60 days. This being so, rejection of the application of petitioner for allotment of the subject fair price shop on the ground of involvement of earlier Manager in illegalities\/irregularities cannot be held sustainable. Petitioner Society cannot be held liable for the offence committed by earlier Manager who has already been duly removed from the services of petitioner Society.\n<\/p>\n
9. Shri Choudhary, further contended that the respondent No. 4 is a Co-operative and not Co-operative Society. In view of Sub-clause (2) of Clause 4 of Scheme of 1991 (contained in Annexure P-18), the subject fair price shop could be allotted to the petitioner alone and could not have been allotted to respondent No. 4.\n<\/p>\n
10. On perusal it is found that respondent No. 4 (Chhatrapati Upbhokta Swayatta Sahkarita Maryadit, Subhash Nagar Ward, Sagar) is a Co-operative as defined under the provisions of M.P. Swayatta Sahkarita Adhiniyam, 1999. “Co-operative” and “Co-operative Society” are defined in Section 2 (f) and 2 (g) respectively which are as follows:\n<\/p>\n
(f) ‘Co-operative’, where used as a noun, means an autonomous association of persons united voluntarily to meet their common need through a jointly owned and democratically controlled enterprise registered under this Act.\n<\/p>\n
(g) ‘Co-operative Society’ means a society registered under the Co-operative Societies Act.\n<\/p>\n
11. Petitioner is admittedly a Co-operative Society under the provisions of M.P. Co-operative Societies Act, 1960 at Registration No. 124 SGR, dated 28-1-1964. Respondent No. 4 is neither shown nor established to be a Society registered under the provisions of the said Act. Although, it has been contended by respondent Nos. 1 to 3 in the return that there were two Cooperative Societies seeking allotment of the fair price shop in question, it is found as a fact that the petitioner-Society was a sole Society registered under the provisions of M.P. Co-operative Societies Act, 1960 seeking allotment of the subject fair price shop.\n<\/p>\n
12. Shri Harpreet Ruprah, learned Counsel appearing for respondent No. 4 submitted that Co-operative Society and Co-operative are convertible into each other by virtue of Section 5 and Section 16 of the Swayatta Sahkarita Adhiniyam, 1999. Since it is a matter relating to conversion of a Co-operative into Co-operative Society, it would be apt to reproduce Section 16 of the M.P. Swayatta Sahkarita Adhiniyam, 1999 for convenience:\n<\/p>\n
 16. Conversion of a Co-operative into Co-operative Society.- A Co-operative registered or a Co-operative Society concerted as Co-operative under this Act intending to convert into a Co-operative Society may apply to the Registrar in accordance with the provisions of Co-operative Societies Act.\n<\/p>\n
In order to seek conversion, an application is liable to be submitted to the Registrar in accordance with the provisions of Co-operative Societies Act. It is admitted by Shri Harpreet Ruprah that no application for such conversion was made by respondent No. 4 before the Registrar in accordance with the provisions of M.P. Co-operative Societies Act. In the absence of any such application having been moved, respondent No. 4 cannot be treated as having been converted in Co-operative Society and it is accordingly held that respondent No. 4 is not a Co-operative Society.\n<\/p>\n
13. Clause 4 of Scheme of 1991 provides for allotment of fair price shops. Sub-clause (2) of it is to the following effect:\n<\/p>\n
 Fair price shop shall be allotted only to Co-operative Societies. If there is more than one Co-operative Society in a particular area, allotment of fair price shop in that area shall be made as per the recommendation of the Deputy Registrar of Co-operative Societies.\n<\/p>\n
14. Aforesaid provision makes it clear that, firstly, the fair price shop cannot be allotted under the Scheme of 1991 to anyone except Co-operative Society. Secondly, the recommendation of the Deputy Registrar of Co-operative Society would be invited only, if, their exists more than one Co-operative Society in the area. Since, the respondent No. 4 has already been held to be not a Co-operative Society, the Deputy Registrar had no jurisdiction to exercise his powers to recommend it for allotment of the fair price shop. Since, the petitioner was the only Co-operative Society registered under M.P. Co-operative Societies Act, 1960 at the relevant time, its application alone for allotment of the subject fair price shop ought to have been considered and the same could not have been rejected on the grounds assigned in the impugned orders contained in Annexures P-16, P-17 and P-19.\n<\/p>\n
15. Although, it has been contended by the respondents that there is a circular issued by the State Government that a Co-operative Society and Co-operative are to be treated at par for the purpose of allotment of the fair price shop, nothing has been placed on record to substantiate this contention. Moreover, Scheme of 1991 has been made by the State Government in exercise of powers under Clause 4 of the M.P. Food Stuffs (Distribution) Control Order, 1960, which empowers the Government to make a scheme for distribution of the food stuffs to the consumers through fair price shops. Thus, the Scheme of 1991 has statutory force and the provision contained in Sub-clause (2) of Clause 4 thereof cannot be superseded or diluted by the alleged circular. This apart, there is a specific provision in Section 16 of M.P. Swayatta Sahkarita Adhiniyam, 1999 for conversion of Co-operative into Co-operative Society and a specific procedural provision has been made in it which requires an application to be filed for conversion of Co-operative Society before the Registrar in accordance with the provisions of M.P. Co-operative Societies Act. Without following the statutory procedure prescribed in the aforesaid provision, I doubt that any such circular, even if, issued may have the effect over the statute. Since, no such circular is placed on record, this Court does not find itself in a position to give a specific finding on the validity and scope of the alleged circular. However, it is held in the absence of circular having been placed on record, the rejection of the application of the petitioner Society for allotment of the fair price shop in question is not only illegal and arbitrary but is also in contravention of the Scheme of 1991.\n<\/p>\n
16. In the result, the petition is allowed and the orders contained in Annexures P-16, P-17 and P-19 are hereby quashed. Respondent No. 3 is directed to consider the application of the petitioner afresh for allotment of fair price shop of the Subhash Nagar Ward, Sagar in accordance with law keeping in mind the aforesaid observations within a period of one month from the date of receipt of certified copy of this order.\n<\/p>\n
No order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madhya Pradesh High Court Subhash Sahkari Upbhokta Bhandar … vs State Of M.P. And Ors. on 12 July, 2007 Equivalent citations: 2007 (4) MPHT 125 Author: A M Naik Bench: A M Naik ORDER Abhay M. Naik, J. 1. Petitioner is a Co-operative Society registered under the provisions of Madhya Pradesh Co-operative Societies Act, 1960 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,24],"tags":[],"class_list":["post-122682","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madhya-pradesh-high-court"],"yoast_head":"\nSubhash Sahkari Upbhokta Bhandar ... vs State Of M.P. 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