Court No. - 54
Case :- WRIT - C No. - 18071 of 2015 Petitioner :- Dharmawati Respondent :- State Of U.P. And 5 Ors.
Counsel for Petitioner :- Jaswant Singh,Syed Mohammad Abbas Abdy Counsel for Respondent :- C.S.C.
Hon'ble Ajit Kumar,J.
1. Rejoinder affidavit filed today is taken on record.
2. By means of the present writ petition the petitioner has assailed the order passed by the prescribed authority dated 15.10.2013 whereby the fair price shop license of the petitioner has been cancelled.
3. Basically the charges that have been levelled while suspending the fair price shop license of the petitioner was that the stock of wheat-grains was found to be lesser than the stock lifted by the petitioner and the spot inspection was carried out of the shop on the day and date fixed for distribution of scheduled commodities. Besides above there were certain other charges regarding irregular distribution of scheduled commodities and over pricing. The petitioner was directed to file reply within a week.
4. It transpires from the record that the petitioner sought further 15 days time to submit reply but that time was not afforded to him and the prescribed authority proceeded to pass the final order cancelling the fair price shop license of the petitioner. Against the said order the petitioner preferred appeal. In appeal also he took the ground that he was not afforded opportunity of hearing and yet the appellate authority proceeded to concur with the findings recorded by the prescribed authority.
5. The argument advanced by the learned counsel for the petitioner is that no proper procedure in conducting the enquiry was adopted by the prescribed authority and the fair price shop license has come to be cancelled de hors the procedure prescribed under the Essential Commodities Control Order, 2004 as well as the Government Order, 2004. The counsel for the petitioner has also relied upon the Full Bench Judgment of this Court in the Case of Puran Singh Vs. State of U.P. and others (AIR 2011 All 72) and also in the case of Ajay Pal Singh v. State of U.P. and Others 2018 (7) ADJ, 301 and Akshay Lal Rai (Writ C No. 60362 of 2013 decided on 29.4.2019).
6. Learned Standing Counsel has defended the orders for the reasons assigned therein and has drawn the attention of the Court towards the part of the order of the appellate authority wherein the it is stated that the present petitioner had been afforded with fifteen days' further time to submit reply but he did not submit reply with the time provided to him, and accordingly there was no option left for the prescribed authority but to pass the final order.
7. Having heard learned counsels for the parties and their arguments advanced across the bar and having perused the record, particularly the order passed by the prescribed authority, I find that the prescribed authority though has considered the charges levelled in the show cause notice but has not discussed as to how those charges have come to be proved. In the absence of enquiry report being supplied to the petitioner, at any point of time, the order passed by the prescribed authority is also silent as to whether there was any report submitted while the inspection was carried out. It is also not clear from the order that any date for the enquiry was fixed in the matter.
9. The appellate authority though has recorded a finding to the effect that the appellant was granted time but there is nothing on record to demonstrate either in the counter affidavit or from the recitals made in the order passed by the prescribed authority that the petitioner was ever afforded any time to file reply or any date was ever fixed in the matter for holding enquiry.
10. It is a settled legal position that in the matter of cancellation of fair price shop license a full-fledged enquiry is contemplated under the Scheduled Commodities Distribution Order, 2004 as well as the Government order, 2004 and the mandate contained in the Full Bench Judgment of this Court in the case of Puran Singh (supra) which also provides holding of full-fledged enquiry. The said judgment was considered and detailed procedure was prescribed in the case of Ajay Pal Singh. These two rulings have been followed by this Court in the Case of Akshay Lal Rai Vs. State of U.P. and others (Writ C No. 60362 of 2013 decided on 29.4.2019). The ultimate legal position comes out to be that while putting a fair price shop under suspension preliminary enquiry may be conducted on the back of the fair price shop dealer but while cancelling the fair price shop license a full-fledged enquiry has to be conducted, which is quite lacking in the present case.
11. In such view of the matter the orders dated 15.10.2013 and 24. 2.2015 passed by the prescribed authority and Joint Commissioner (Food), Meerut Division, Meerut are hereby quashed and the matter is remanded to the prescribed authority to conduct enquiry afresh in the light of the judgment cited hereinabove. The petitioner shall be at liberty to file his reply and lead evidence as he may be required in defence of his claim. In any event entire proceedings shall be concluded within a period of three months from the date of production of certified copy of this order.
12. However it is made clear that the status of the fair price shop whether under attachment or under fresh allotment shall continue and shall abide by the final order passed by the prescribed authority as directed hereinabove.
13. With the aforesaid observations and directions the writ petition stands disposed of.
Order Date :- 31.7.2019 Nadeem Ahmad