Court No. - 10
Case :- WRIT - C No. - 9040 of 2016
Petitioner :- Dhirendra Yadav
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Rajesh Kumar,Firoz Haider,S.M. Iqbal Hasan
Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
Sri S.M.Iqbal Hasan appears for the petitioner and Sri Sanjay Kumar Singh, learned Standing Counsel appears for the State-respondent.
By means of the present writ petition, petitioner is assailing the order impugned dated 6.6.2015 passed by the third respondent as well as order dated 27.11.2015 passed by the second respondent whereby agreement of the fair price shop of the petitioner has been cancelled.
Learned counsel for the petitioner has assailed the order impugned on two grounds. Firstly, the entire action has been taken by the licensing authority merely on the presumption that the vehicle which was confiscated consisting of essential commodities which were earmarked for the public distribution, the same belong to the fair price of the petitioner. Secondly, contrary presumption has been drawn against the petitioner by the licensing authority solely on the basis of F.I.R. lodged under 3/7 of the Essential Commodities Act.
Learned counsel for the petitioner, in this backdrop, precisely submits that the entire procedure given in the Government Order dated 29.7.2004, Control Order 2004 as well as Full Bench of this Court in Puran Singh Vs. State of U.P. and others 2010 (3) ADJ 659, has given go-bye while passing the order impugned. Even though detailed reply has been submitted by the petitioner on 15.12.2014 in compliance of the order dated 8.12.2014 but merely on the ground of lodging of F.I.R. under Section 3/7 Essential Commodities Act, the order impugned has been passed by the third respondent on 6.6.2015 cancelling the agreement of the fair price shop of the petitioner and further directed to confiscate the security of shop. The same has also been approved by the appellate authority vide order dated 27.11.2015. In support of his submissions, he has placed reliance upon the judgment of this Court passed in Raj Kumari Vs. State of U.P. and Ors. 2011 LawSuit(All) 834 as well as judgment of the Apex Court in Mahaveer Prasad Santosh Kumar Vs. State of U.P. and others AIR 1970 Supreme Court 1302.
On the other hand, learned Standing Counsel has vehemently opposed the writ petition and submits that admittedly the essential commodities which were earmarked for the public distribution has been confiscated and the F.I.R. has been lodged under Section 3/7 Essential Commodities Act and at no point of time, the petitioner has furnished any rebuttal that the same does not belong to the petitioner.
Heard rival submissions. The Court has proceeded to examine the record in question and finds that the objection raised by learned counsel for the petitioner definitely has force. Admittedly, in the present matter at no point of time any proper enquiry has been conducted by the competent authority and merely on the basis of the F.I.R. under Section 3/7 Essential Commodities Act lodged against the petitioner, contrary presumption has been drawn by the licensing authority to the extent that the confiscated essential commodities belong to the petitioner's shop. On this score relying the aforesaid judgment, the Court is of the considered opinion that the proper remedy was before the authority once the essential commodities were ceased then it was incumbent upon the authority to verify the such stock by detailed enquiry in the matter and substantiate the said confiscated item belong to the petitioner but no such effort has been made in the present case.
This Court is also of the opinion that mere filing of a F.I.R. cannot result in holding a fair price shop owner guilty of the offences charged. In Jagdish Narain Mishra Vs. State of U.P. (Civil Misc. Writ Petition No. 28051 of 2008), this Court while allowing the writ petition on 30.10.2009 has proceeded to observe as under:
"Despite advancing lengthy arguments, learned standing counsel has failed to bring to the notice of the Court any provision either under the Essential Commodities Distribution Order, 2004 or under any other Government Order issued either under the 2004 order or 1990 order empowering the Licensing Authority to cancel a fair price shop agreement merely on account of a dealer being involved in a criminal case. Hence the cancellation of the petitioner's agreement on the ground of his involvement in aforesaid criminal case under the Essential Commodities Act is also unsustainable. "
Similar view has also been taken by the Division Bench of this Court in Raj Kumari Vs. State of U.P. and Ors. 2011 LawSuit(All)834. A bare perusal of the impugned order this much is clearly reflected that at no point of time the objection raised by the petitioner has ever been dealt with by the Licensing Authority independently. The authority concerned has not applied his own mind to the charges levelled against the petitioner and he has passed the order impugned without application of mind merely on the basis of F.I.R. lodged against the petitioner. The order must be passed after recording reason and in absence of any such reason, the order is liable to be quashed.
In view of the aforesaid discussion, the orders impugned cannot sustain and the same are hereby quashed. The petitioner's fair price shop is restored forthwith. However, it will be open to the competent authority to hold a full fledged enquiry and pass a fresh order in accordance with law.
In the result, the writ petition succeeds and is allowed.
Order Date :- 22.1.2019 A.K.Srivastava