Court No. - 10
Case :- WRIT - C No. - 52742 of 2012
Petitioner :- Achchhan Khan
Respondent :- State Of U.P. Thru Secy. And Others Counsel for Petitioner :- Uttar Kumar Goswami,S.D. Dwivedi,Sanjeev Mishra Gana
Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
In response to the order dated 31.10.2018, the office report dated 12.11.2018 is accepted.
Heard Shri Rajesh Shukla, learned counsel for the petitioner and Shri S.R. Tripathi, learned Standing Counsel for the State respondents.
Petitioner, who is an licensee of fair price shop, is assailing the validity of order impugned dated 21.04.2011 passed by Sub Divisional Magistrate, Puwayan, District Shahjanhanpur (fourth respondent), whereby, the license of fair price shop of petitioner has been cancelled as well as the order dated 13.09.2012 passed by the Additional Commissioner (Judicial) Bareilly Division, Bareilly, whereby, the appeal preferred by the petitioner bearing Appeal no.193/2011 has been dismissed.
It appears that petitioner is a fair price shop licensee of Gram Panchayat Mahanandpur, Post Gandharpur, Block Sidhauli, Tehsil Puwayan, District Shahjanpur since more than 20 years. It is claimed that petitioner is continuously distributing the essential commodities such as wheat, rice, sugar and kerosene oil etc. at the rate fixed by Food and Civil Supply Department among valid card holders. It further appears that on certain allegations of some persons, the Sub Divisional Officer, Puwayan, Shahjahanpur vide order dated 05.03.2011 has suspended the fair price shop license of petitioner. Thereafter the petitioner has submitted his reply on 05.03.2011. Finally, the Sub Divisional Officer, Puwayan, District Shahjahanpur vide order dated 21.04.2011 has cancelled the petitioner's license on the ground that the reply submitted by the petitioner is not satisfactory and the same has been approved by the Appellate Authority vide order dated 13.09.2012.
Learned counsel for the petitioner precisely submits that the entire action so initiated against the petitioner, on the complaint of private respondents, is in the teeth of dictum of Full Bench judgement of this Court in Puran Singh vs. State of U.P. and others 2010 (3) ADJ 659 (FB), which has been followed by this Court while passing the order dated 28.11.2014 in Writ C no.12737/2013 and as such, he submits that full fledged inquiry is necessary before cancelling the agreement and it would require service of the charges, alongwith material in support of each charge, the information about the place and date of inquiry, the statements of persons on whose complaint inquiry was started or in a case of suo motu inquiry, the statements of the persons appearing before the Enquiry Officer and as such, he submits that at no point of time, the inquiry has ever been conducted in the matter and merely on vague and evasive complaint of certain persons, in a half page note, final order has been passed and as such, both the orders impugned cannot sustain and is liable to be set aside.
Per contra, learned Standing Counsel raised an objection that so far as the arguments advanced by learned counsel for the petitioner is concerned, the same is unfounded on the ground that in most cursory manner, the petitioner has responded the show cause notice and as such, the Authority, on the spot, on the basis of allegations so levelled against the petitioner, has proceeded to suspend the fair price shop license of the petitioner and the same has also been approved by the Appellate Authority. In this backdrop, he submits that once concurrent finding of fact has been recorded by both the Authorities, then there is no reason or occasion to substitute the finding recorded by both the courts' below and as such, no interference is required in the matter..
Heard rival submission and perused the record.
Admittedly, in the present matter, on the complaint of private respondents, a suspension order has been passed levelling certain allegations against the petitioner and the petitioner has also been asked to submit his reply to the said allegations. This is also admitted situation that the same has been responded by the petitioner by filing an objection but so far as the decision so taken by the Authority is concerned, this Court is of the considered opinion that at no point of time, the Authority has adhered the procedure prescribed as per the Government Order dated 29.07.2004, wherein, full fledged mechanism has been provided therein for initiation of an inquiry and finalization of the proceeding. The said view has also been affirmed by this Court in Smt. Santara Devi vs. State of U.P. and others 2016 (2) ADJ.
In view of the above, this Court is of the considered opinion that both the orders impugned cannot sustain in absence of proper inquiry which is sought to be conducted in pursuance of Government Order dated 29.07.2004 and accordingly, both the orders impugned are set aside. The writ petition stands allowed. However, it is open for the Authorities concerned to hold a fresh inquiry in accordance with law and pass appropriate order but certainly after according ample opportunity of hearing to the petitioner also.
Order Date :- 28.11.2018
A. Pandey