Court No. - 26
Case :- WRIT - C No. - 10432 of 2018 Petitioner :- Akshay Kumar Singh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Daya Ram Singh Chauhan Counsel for Respondent :- C.S.C.,Rajiv Kumar Mishra,Ramesh Chandra Upadhyay
Hon'ble Mrs. Sangeeta Chandra,J.
(ORAL) This writ petition has been filed by the petitioner praying for quashing of the order dated 22.02.2018 passed by the Commissioner, Azamgarh Division Azamgarh in Appeal No. 325 of 2018 (Gram Panchayat, Jagdishpur through its Pradhan vs District Supply Officer, Mau). This appeal was filed against an order dated 22.04.2017 passed by the Licensing Authority revoking the suspension order and restoring the fair price shop licence of one Akshay Kumar Singh, who is the petitioner before this Court.
The Commissioner in his order has given a finding that the Supply Inspector has submitted a report on 30.05.2016 mentioning therein that Akshay Kumar Singh, the licensee had in his possession 1007 litres of kerosene. However, in the inspection that was carried out, the petitioner instead of having ten drums of kerosene had in his possession only nine drums of kerosene.
The Licensing Authority has not mentioned in his order dated 22.04.2017 that the licensee produced the Stock Register of kerosene before him.
Therefore, it was not clear as to how without physical verification of stock in the shop of the petitioner and without examination of Stock Register, the Licensing Authority had passed the order dated 22.04.2017.
The order impugned dated 22.04.2017 was therefore set aside by the Appellate Authority by his order dated 22.02.2018, and the matter was remanded to the Licensing Authority to consider afresh and pass appropriate, reasoned and speaking order within a period of two months.
In the order dated 22.2.2018, a further direction was issued to the Licensing Authority to find out the correct status of the FIR alleged to have been lodged against the licensee under section 3/7 of the Essential Commodities Act. A further direction was also issued to take necessary disciplinary action against the respective officials of the office of the District Supply Officer, who were negligent in the matter.
Learned counsel for the petitioner submits that the petitioner's licence was initially suspended only on the basis of an FIR being lodged against him under section 3/7 of the Essential Commodities Act. The petitioner submitted his explanation, which was considered and the Licensing Authority passed by the order impugned. Now, by the order impugned, the Appellate Authority has interfered in the matter without there being any jurisdiction vested in him in law to entertain the challenge to the order dated 22.02.2018 set up by the Gram Pradhan of the village concerned.
It has also come on record that no recall application was moved against the order dated 20.01.2017, which has become final, and therefore, there is no occasion to remand the matter to the Licensing Authority, as has been done in the order impugned.
At the initial stage of hearing of this matter, a question arose as to whether an appeal by the Gram Panchayat could be entertained against the order dated 22.02.2018 passed by the Licensing Authority, in a proceeding held in pursuance of the remand order of the Appellate Authority directing the Licensing Authority to consider afresh the case of the licensee.
Learned counsel for the petitioner while challenging the order passed by the Appellate Authority has taken a ground that no such appeal could have been entertained as neither the Gram Pradhan nor the subsequent allottee had any locus in the matter.
It has been brought to the notice of this Court that in Writ C No. 39800 of 2017 (Smt. Farzana vs State of UP and 3 others) decided by Co- ordinate Bench of this Court on 28.02.2018, it has been held by this Court that upon a conjoint reading of both the authoritative English text and the Hindi text of the U.P. Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016, an appeal would lie against the restoration of a licence after suspension or cancellation order is set aside. This Court has considered the two Full Bench decisions in the aforecited judgment, wherein it has been held that although the authoritative version of a Notification issued in English text shall be considered as conclusive in such matters where the English version is inconclusive or there is a doubt of conflict with the Hindi version of the same Notification, both the Notifications should be considered together. Under the Hindi text, an appeal is maintainable also against Bahali (restoration), whereas in the English version of the same Government Order, appeal is maintainable only against allotment, suspension and cancellation.
This Court having held appeal to be maintainable also against the restoration, the main ground taken by the learned counsel for the petitioner for challenge to the order passed by the Appellate Authority deserves to be rejected.
With regard to merits of the order passed by the District Supply Officer, Mau dated 22.04.2017 restoring the fair price shop licence of the petitioner, the learned counsel for the petitioner submits that initially an FIR was lodged against the petitioner only because in a surprise inspection of the premises of the Block Distributor M/s Agarwal Trading Agency, it was found that instead of unloading the kerosene first in their own drum and then distributing the same to the fair price shop licensee, the Block Distributor was supplying kerosene directly from the tanker to the said licensee. An FIR was lodged on 20.05.2017 naming the Block Distributor and his employees and the petitioner and one other licensee. In pursuance of the same FIR, the fair price shop licence of the petitioner was suspended on 25.05.2016, and time was given to file his explanation. The petitioner was suffering from Hypertension and Sciatica and could not submit his explanation in time i.e. by 14.07.2016, therefore, the fair price shop licence of the petitioner was cancelled on 17.07.2016. The petitioner approached the Appellate Authority against the cancellation order. The Appellate Authority partly allowed the appeal and set aside the order dated 14.07.2016 while keeping the suspension order in place, remanded the matter to the Licensing Authority to decide afresh after giving reasonable opportunity of hearing. The licensee thereafter submit his explanation to the Authority concerned including the documentary evidence of sale of 1007 litres of kerosene by the Block Distributor to the petitioner as well as his quota card. The Supply Inspector had personally supervised the distribution of kerosene by the petitioner and issued a Distribution Certificate also. The Stock Register contained entries regarding correct quantity of kerosene. After the suspension order, the petitioner was asked to hand over stock of kerosene to linked shop licensee, which the petitioner did and a certificate with regard to transferring of whole of the Stock of kerosene of the shop of the petitioner to the linked shop dealer was also issued. The allegation against the petitioner in the FIR dated 25.05.2016 was only with respect to not being able to show Stock Register at the time of surprise inspection of the Block Distribution's premises. Even in the FIR that was lodged, the District Magistrate by an order dated 24.08.2017 has found no role of the petitioner. On the basis of the such order passed by the District Magistrate, Mau, the Investigating Officer has submitted his final report on 30.08.2017, which has been accepted by the competent Trial Court on 10.11.2017.
Having heard the learned counsel for the petitioner and Mr R.C. Upadhyay, learned counsel for the Gaon Sabha and learned Standing Counsel for the State-respondents and having perused the orders impugned, this Court finds that the licence of the petitioner was restored on 22.04.2017 by the Licensing Authority, the District Supply Officer, Mau. However, the Appellate Authority, the Commissioner, Azamgarh Division, Azamgarh has wrongly set aside the said order, by the order impugned dated 22.02.2018.
The order dated 22.02.2018 is set aside.
The licence of the petitioner shall be restored forthwith.
The writ petition is allowed.
Order Date :- 29.3.2018 Sazia