ORDER

Challenge in the present case is made to order Annexure P/4 passed by the SDO as subsequently confirmed in appeal by the Collector vide order Annexure P/5. By the order Annexure P/4, the petitioner has been saddled with economic cost of Rs. 3,21,063/- and the said order has been confirmed in appeal vide Annexure P/5. The petitioner happened to be salesman of fair price shop Murwari run by Primary Agriculture Credit Society Limited Murwari, District Katni.

2 .Learned senior counsel appearing for the petitioner has submitted that an inspection of the shop is stated to have taken place on 08.11.2013 and as per order-sheets of the case drawn by the SDO and placed on record as Annexure P/2, show-cause notice was issued to the society Manager and Salesman on 24.12.2013. It is the case of the petitioner that as on that date the control order which was in force was M.P. Public Distribution System Control Order 2009 and the said control order remained in force upto March 2015. The proceedings are thus under the aforesaid control order of 2009.

3. It is also the case of the petitioner that the proceedings which were drawn in the year 2013 continued for a long time and proceeding came to an end only with passing of the order Annexure P/4 on 16.01.2018. In the intervening time the new control order had been framed by the State Government known as M.P. Public Distribution System Control Order 2015 which was published in the gazette on 25.03.2015 and as per clause 1(3) of the said control order it came into force on the date of its publication in official gazette i.e. on 25.03.2015. The case of the petitioner is that the provision of punishment and penalty which was laid down in clause 11 of the Control Order 2009 is different from the provision of punishment and penalty which has been laid down in clause 16 of the Control Order of 2015. It is the contention of the petitioner that the impugned order Annexure P/4 imposes penalty in terms of the control order of 2015 and such penalty has been imposed on the petitioner which could not have been imposed under Control Order 2009 and which could be imposed only in terms of the Control Order 2015.

4. In sum and substance, it is the contention of the petitioner that the control order of 2015 has no retrospective operation and for any act alleged to be done prior to 25.03.2015, the punishment and penalty can only be in terms of the Control Order 2009 which was in force when the inspection was carried out in the year 2013.

5. Learned counsel for the State in his turn has argued that this contention was not raised before the appellate authority and a copy of the appeal memo has been placed on record along with reply of the State Government. By referring to the appeal memo of the petitioner before the appellate authority, it is argued by the State counsel that this aspect was not before the appellate authority and thus this aspect cannot be considered for the first time by this Court.

6. In rejoinder submission, it is argued by learned senior counsel appearing for the petitioner that though this issue might not have been raised before the appellate authority, but it is a purely legal issue going to the root of the matter and such jurisdictional issue going to root of the matter can be raised even at this stage.

7. This Court has heard learned counsel for parties at length.

8. In the present case, it is not in dispute that the control order 2009 was framed by the State Government and it came into force on 03.11.2009. The said control order was superseded by Control Order of 2015 which came into force on 25.03.2015.

9. Clause 20 of the control order 2015 contains repeal and saving clause as under :-

20. Repeal and Saving.- The Madhya Pradesh Public Distribution System Control Order, 2009, is hereby, repealed:

Provided that, the repeal shall not affect the cases registered under the repealed order and subsequent proceedings.

10. Clause 1(3)of the said c