Court No. - 10
Case :- WRIT - C No. - 41432 of 2018\ Petitioner :- Bhukan Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Bharat Singh Counsel for Respondent :- C.S.C.,Arun Kumar Srivastava
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Bharat Singh, learned counsel for the petitioner; Shri P.K. Chauhan, learned Standing Counsel for the State respondents and Shri A.K. Srivastava, learned counsel appearing for the Gaon Sabha.
The petitioner is before this Court assailing the order dated 26.10.2018 passed by the second respondent, Sub Divisional Magistrate, Chandausi, District Sambhal, by which his fair price shop license has been cancelled.
It appears that on the basis of complaint dated 3.7.2018 and on the basis of alleged enquiry dated 5.7.2018, a charge sheet was issued to the petitioner on 10.7.2018 calling explanation from him within one week with regard to the complaint made by the villagers. The petitioner was suffering from Hepatitis 'C' and he was under treatment at Safdarjung Hospital, New Delhi. By the impugned order dated 26.10.2018, the second respondent has cancelled the fair price shop licence of the petitioner on the ground that the petitioner has not submitted his reply to the show cause notice dated 10.7.2018.
Learned counsel for the petitioner very fairly states that in the present matter, the show cause notice was issued to the petitioner before cancellation of his fair price shop licence. At the relevant point of time the petitioner was suffering from Hepatitis 'C' and he was under treatment at Safdarjung Hospital, New Delhi on account of which he could not file any response and the ex-parte order has been passed. The entire action taken by the respondents is in teeth of the procedure laid down in the Government Order dated 29th July, 2004 and the U.P. Scheduled Commodities Distribution Order, 2004 (Distribution Order, 2004) and the provisions of the same had not been followed in the present case, therefore, cancellation of allotment of fair price shop license in favour of the petitioner is illegal and against the principle of natural justice. The aforesaid Government Order dated 29th July, 2004 and the Distribution Order, 2004 came up for consideration before the Full Bench of this Court in Puran Singh v. State of U.P. & Ors., 2010 (3) ADJ 659 (FB) in which it is held that in case after suspension of the agreement to run fair price shop the authority decides to hold an enquiry for cancellation of the agreement, then that requires full fledged enquiry. Relevant para 35 of the said judgment is quoted as under:-
"35. Para 4 and 5 of the Government Order clearly permits fulfledged enquiry pursuant to the show cause notice for cancellation and then final decision in the matter. So far the order of suspension is concerned Government Order do not provide any appeal and at the same time there was no contemplation of signing an agreement as was made obligatory pursuant to Distribution Order of 2004."
It is contended that the judgment of Puran Singh (Supra) has also been followed by this Court, while passing the order dated 28.11.2014 in Writ C No.12737/2013 and as such, 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. The said view has also been affirmed by this Court in Smt. Santara Devi vs. State of U.P. and others 2016 (2) ADJ.
Learned counsel for the petitioner has also contended that in the present matter at no point of time the procedure as has been contemplated in G.O. dated 29.7.2004 has ever been adhered. In support of his submissions, he has also placed reliance on the Division Bench judgment of this Court in Gulab Chandra Ram v. State of U.P. & Ors., 2009 (2) AWC 1066 as well as judgment in Mahendra Singh v. State of U.P. & Anr., 2016 (8) ADJ 732. Relevant para 13 of the judgment in Mahendra Singh (Supra) is quoted as under:-
"It is also well settled that an order which leads to civil consequences and have passed without opportunity must be passed in conformity with the principles of natural justice. Reference may be had in State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75; State of Orissa v Dr. (Miss) Binapani Dei, AIR 1967 SC 1269; Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405; Maneka Gandhi Vs. Union of India (1978)1 SCC 248 and D.K.Yadav Vs. J.M.A. Industries Ltd. Reported in 1993 ,SCC 259 Canara Bank vs. V.K.Awasthy (2005 (6) SCC 321), Bidhannagar (Salt Lake) Welfare Ass. vs. Central Valuation Broad and Others ((2007) 6 SCC 668) Devdutt vs. Union of India and others (2008(3) ESC 433(SC) and Suresh Singh vs. Board Of Revenue And 3 Ors. (2014 (5) ADJ 697)."
Per contra, learned Standing Counsel has raised an objection that so far as the argument advanced by learned counsel for the petitioner is concerned, the same is unfounded on the ground that the petitioner has not responded to 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 cancel the fair price shop license of the petitioner. 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 certain complaint, the enquiry was conducted and the report was submitted. Thereafter a show cause notice was issued to the petitioner but on account of illness he could not file his reply to the show cause notice. Finally, the authority concerned has cancelled the fair price shop licence of the petitioner. The petitioner has also brought on record the medical certificates as Annexure No.2 to the writ petition. It is admitted situation that the petitioner was under treatment at Safdarganj, New Delhi. The impugned order is in teeth of principle of natural justice and one more indulgence is required to be given to the petitioner.
In view of the above, the order 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, the same is set aside. The authority concerned may revisit in the matter and decide afresh sympathetically taking into account the objection so filed by the petitioner within a period of two months from the date of receipt of certified copy of the order.
Consequently, the writ petition stands allowed.
Order Date :- 18.12.2018 RKP