Court No. - 32
Case :- WRIT - C No. - 1060 of 2021 Petitioner :- Imtiyaz Ahmad Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Shri Krishna Mishra,Sharad Chand Rai Counsel for Respondent :- C.S.C.
Hon'ble Rohit Ranjan Agarwal,J.
Heard Sri Sharad Chand Rai, learned counsel for the petitioner and learned Standing Counsel for the respondent-State.
This writ petition has been filed assailing the cancellation order dated 15.10.2020 passed by respondent no.5 cancelling the licence of fair price shop of the petitioner as well as the appellate order dated 31.12.2020 passed by respondent no.2.
It is contended by learned counsel for the petitioner that while passing the order impugned for cancelling the licence of the fair price shop, the Sub-Divisional Magistrate had considered the reply of the petitioner, wherein it is stated that out of 43 card holders who had reported that food grains were not distributed, 11 had subsequently given affidavits in favour of the petitioner. However, on an enquiry by the Tehsildar on 05.08.2020 this fact came before the authority concerned, however relying upon the letter of the District Magistrate dated 02.09.2020, the authority concerned cancelled the licence of the petitioner on the ground that licence of the petitioner was earlier suspended five times from February 1999 to December 2006. It is further contended that in the appeal, specific ground was taken as to the fact that in fact 123 card holders have given joint affidavits in favour of petitioner before the authority and the said fact was not considered and on the basis of wrong fact the licence of the petitioner's fair price shop has been cancelled. The appellate authority was also swayed away by the order of the respondent no.5 and dismissed the appeal solely on the ground that the licence of the petitioner was under suspension five times earlier from February 1999 to December 2006.
Learned Standing Counsel while opposing the writ petition submitted that report of the Tehsildar should be taken into consideration and inference be drawn that apart from 11 card holders who had supported the petitioner still 32 card holders were there who did not turn up and maintained their complaint against the petitioner.
Having heard counsel for the parties and from perusal of record, it transpires that the respondent no.5 though observing the said fact had proceeded to cancel the licence solely on the ground that the licence of the petitioner's fair price shop was earlier put under suspension five times between 1999 to 2006. This cannot be the ground for cancellation of licence as the authority was bound to see that if any irregularity was committed by the petitioner when the action was initiated by the District Supply Officer by suspending the licence, an enquiry be initiated against the petitioner. Once it is found that the card holders have given their affidavits in favour of the petitioner, the authority should have recorded finding to that effect and not on the basis of earlier proceedings should have proceeded to cancel the licence.
Apart from respondent no.5, the appellate authority seems to have been swayed by the observations so made in the cancellation order and did not apply its independent mind which it should have done while deciding the appeal. Specific ground was taken in the appeal by the petitioner as to 123 card holders jointly given affidavits in his favour which was never considered by the appellate authority.
Considering the facts and circumstances of the case, I find that both the authorities committed mistake by cancelling the licence of fair price shop of the petitioner on the ground of his previous misconduct which cannot be taken into account in the present proceedings and can be made the sole basis for cancelling the licence.
In view of the above, impugned orders are hereby quashed and the writ petition stands allowed.
Order Date :- 12.8.2021 SK Goswami