Court No. - 10
Case :- WRIT - C No. - 49122 of 2015 Petitioner :- Harkesh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Saiful Islam Siddiqui, Ajay Kumar Srivastava, S. Safdar Ali Kazmi, Tahira Kazmi Counsel for Respondent :- C.S.C.,Krishna Kumar Singh
Hon'ble Mahesh Chandra Tripathi,J.
Heard learned counsel for the parties.
Petitioner is before this Court assailing the order impugned dated 1.4.2015, 2.6.2015 passed by Sub Divisional Magistrate Sambhal and the order dated 14.7.2015 passed by Commissioner Moradabad Division, Moradabad (Annexure No. 12, 15 and 14 respectively to this writ petition). With further request commanding the respondent to restore the fair price shop in favour of the petitioner.
The record in question reflects that the fair price shop in question was allotted in favour of the petitioner vide allotment order dated 15.12.2008 passed by the second respondent pursuant to the decision taken taken by selection committee in its meeting on 2.12.2008. In the year 2011, petitioner was served with a show cause notice dated 9.3.2011 issued by the second respondent regarding irregularity in distribution of essential commodities, reply to which was given by him on 14.3.2011. Vide order dated 8.4.2011 passed by the second respondent, the petitioner was given a warning and Rs. 4000/- was taken from him as a penalty. Again on complaint of one Ram Das who was in the list of APL card holders of the petitioner's fair price shop, a show cause notice dated 24.5.2011 was issued to the petitioner to which the petitioner has given his reply on 1.6.2011 and the petitioner continued to run his shop on paying penalty of Rs. 2000/- on 4.11.2011. Thereafter, again on complaint of Ram Das along with few other villagers, a show cause notice was issued to the petitioner on 3.4.2013, detailed reply to which was given by the petitioner and the same was received in the office of second respondent on 21.5.2013. Subsequently on 20.12.2014, show cause notice/suspension order was issued to the petitioner by the second respondent again with the similar allegation as that of previous complaint to which the petitioner has given his detailed reply on 27.1.2015. Finally, on 1.4.2015 without considering the reply of the petitioner, the second respondent has passed the order impugned cancelling the licence of the fair price shop of the petitioner. Being aggrieved, the petitioner filed an appeal under Section 28(3) of U.P.Schedule Commodities Distribution Order, 2004 before the third respondent, which too got dismissed vide order dated 14.7.2015. Meanwhile, by the order impugned dated 2.6.2015 passed by the second respondent the fair price shop in question got allotted to Smt. Tarbeni wife of Ram Das. Hence, this writ petition.
Learned counsel for the petitioner, in this backdrop, 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. The fair price shop in question was allotted to fourth respondent, namely, Smt. Tarbeni Devi wife of Ram Das and this action is self explanatory that the continuous harassment of the petitioner was due to the frivolous complaints of Ram Das to the second respondent and while passing the order impugned this fact was completely overlooked by the respondents. He further submits that the set of villagers who are alleging against the petitioner are invariably the same people since 2011. This persistent harassment itself speaks the volume about the fact that some element of bias and personal intention is involved in the entire issue. He further submits that while passing the order impugned both the respondents have totally overlooked the fact of the petitioner that the amount of commodities allotted to him is always lesser than the number of card holders and that is why, even the state authorities recognises the policy of "First Come First Serve" as such the order impugned are unsustainable and are liable to be quashed by this Court and the respondents be directed to restore the fair price shop in question in favour of the petitioner forthwith.
Per contra, learned Standing Counsel submits that since very beginning, several complaints were made against the petitioner and after due inquiry, several adverse orders including strict warnings and financial punishment, were passed against the petitioner in spite of that the petitioner did not improve his working and continued to commit irregularities. He also submits being vacancy of a fair price shop, Gram Panchayat concerned passed a resolution dated 20.5.2015 for granting fair price shop in favour of one Smt. Tarbeni Devi W/s Ram Das and on the basis of said resolution and recommendation of Tehsil Level Selection Committee, she was granted licence on 1.6.2015 who is still running the fair price shop in question as such the petitioner is not entitled to get any relief as sought.
In the aforesaid facts and circumstances, the Court is of the considered opinion that the order impugned cannot sustain and accordingly the same are set aside. The matter is relegated to the Sub Divisional Magistrate Sambhal, District Moradabad to proceed strictly in accordance with law, as expeditiously as possible and preferably within two months from the date of production of certified copy of the order before him in terms of the reply dated 27.1.2015 filed by the petitioner and in the light of Control Order 2004, Government Order dated 29.7.2004 and Full Bench judgement of this Court in Puran Singh vs. State of
U.P. and others 2010 (3) ADJ 659 (FB) but certainly after affording opportunity to all the stakeholders in the matter.
The writ petition is accordingly allowed.
Order Date :- 23.1.2019 A.K.Srivastava