S. C. Mathur, J. - (1.) THROUGH the instant petition filed under Article 226 of the Constitution the petitioners, namely, Ganesh Ganj Consumers Cooperative Store Limited, and Lalman, its alleged authorised Salesman, have prayed for quashing the First Information Report, for short, FIR, lodged at police station Aminabad, Lucknow, by Sri Radhey Shyam Srivastava, Supply Inspector, Wazirganj Division, Lucknow, under section 3/7 of the Essential Commodities Act, 1955 (Act No. 10 of 1955), for short Act. The allegation is that provisions of U. P. Food Grains and other Essential Articles Distribution Order, 1977 have been violated and thereby offence has been committed under section 3/7 of the Act.
(2.) THE sole ground of challenge is that the Supply Inspector did not have the requisite authorisation under section 11 of the Act, as amended in its application to the State of Uttar Pradesh. According to the petitioners in view of the Government Order dated 29th April, 1982, Annexure 3, no officer below the rank of a Tahsildar was competent to lodge the report, and the Supply Inspector, who lodged the report, was below the rank of Tahsildar and, therefore, he was incompetent to lodge the report. On behalf of the State competence of the Supply Inspector is pleaded with reference to the order dated 29th December, 1977 passed by the District Magistrate, Lucknow, a copy of which has been filed as Annexure B-1 to the counter-affidavit. His competence is asserted also with reference to a circular letter issued by the Secretary to U. P. Government, Food and Civil Supplies Department, on 24th August, 1981, Annexure B-2. Annexure 3 is copy of a circular letter endorsed by the Anu Sachiv to the U. P. Government, Food and Civil Supplies Department, to all the District Magistrates in the State. Its heading is : " Sahkari Kshettra Ki Dookanan Kay Virudh Thane Par Partham Soochna Report Darj Kara Nay Ki Sakchharata Kay Sambandh Main." Rendered in English it would mean regarding competence for lodging First Information Report at Police Station against shops falling in the Cooperative Sector. It reads as follows:- " Uparyukt Vishai Par Mujhey Yebi Kahnay Ka Aadesh Huwa Hai Ki Shashan Nay Yeh Nirnai Liya Hai Ki Sahkari Kshettra Ki Dookanon Kay Virudh Thanay Par Pratham Soochna Report Block Astar Par Sahayak Vikas Adhikari Sahkarita Evam Anya Astaron Par Tahsildar Say Neeche Kay Astar Kay Adhikari Darj Karanany Kay Liye Saksham Na Manay Jayan." This order specifies two authorities and states that the authorities below in rank to these authorities may not be treated as competent to lodge FIR against shops falling in the Cooperative Sector. One authority is Sahayak Vikas Adhikari, Sahkarita (Assistant Development Officer, Cooperative), for short ADO and the other is Tahsildar. ADO has been mentioned in respect of shops at the Block level and Tahsildar covers the remaining shops in the Cooperative Sector.
(3.) THE learned counsel for the State submits that the order deals with shops in the Cooperative Sector which are situated in villages and it has no application to shops situated in cities and since the shop in question is situate in the city, it is irrelevant. We are unable to accept the submission of the learned counsel for the State. The order does not make any distinction with reference to villages and cities. It makes distinction with reference to shops at the Block Level and the rest of the shops. The petitioners' shop is not situated in an area covered by a Block. Therefore, the first clause is not applicable. Accordingly it is the residuary clause which will be attracted. Under the residuary clause, if this Government Order applies, the FIR should have been lodged by the Tahsilder or by an officer higher in rank to him, but not by an officer lower in rank to him. Supply Inspector is admittedly lower in rank to the Tahsildar. Before taking leave of this order, we may point out that it does not appear to have been issued in exercise of any statutory power. Atleast no statutory power has been referred to in the order.;