1. The order dated 22.4.2013 passed by the Sub-Divisional Magistrate, Lambhua, District Sultanpur whereby the fair price shop licence of the petitioner has been cancelled and the order dated 3.3.2016 passed by the Additional Commissioner (Judicial), Faizabad Division, Faizabad whereby the appeal preferred by the petitioner against the said order has been rejected are under challenge in the present writ petition.
2. The petitioner was a licensee of a fair price shop situated in village Panna Tikari, Block Bhadaiyan, Tehsil Lambhua, District Sultanpur. On the complaint made by Devendra Kumar and others on 12.11.2012, a preliminary inquiry was allegedly conducted by the Area Food Officer, Lambhua. The Area Food Officer allegedly recorded the statement of some card holders and submitted his report on 16.12.2012 and on the basis of the said report, the license of the petitioner was suspended by the Sub-Divisional Magistrate by an order dated 23.11.2012. By the same order, the petitioner was required to submit his reply to the charges levelled against him within the time mentioned in the said order. The charges levelled against the petitioner in the order dated 23.11.2012 are extracted below:
"1- tkap ds le; lwpuk iV~V ij fcuk dkj.k n'kkZ;s nqdku cUn ik;h x;hA 2- ,0ih0,y0 dkMZ /kkjd uksybZ dkMZ la[;k&275485] dUgbZ dkMZ la[;k&266659] lUrks"k dkMZ la[;k&275461] tequk izlkn dkMZ la[;k&275494] dk'kh izlkn dkMZ la[;k&266748] iznhi dqekj dkMZ la[;k&266648] jkts'k dqekj dkMZ la[;k&404233] txnh'k izlkn dkMZ la[;k&266748] }kjk crk;k x;k fd fodzsrk }kjk mUgs 7-50 fdxzk0 xsgwa :i;k 52-00 esa fn;k x;k rFkk feV~Vh rsy 03 yhVj :i;k 54-00 esa fn;k x;k] tks fu/kkZfjr nj ls vf/kd gSA 3- ch0ih0,y0 dkMZ /kkjd eX?kw dkMZ la[;k&139894] jf'kd fcgkjh dkMZ la[;k&226625] 'kEHkw dkMZ la[;k&139873] vejthr dkMZ la[;k&226637] jkevfHkyk[k dkMZ la[;k&139894] jkedyi dkMZ la[;k&183804] ijes'oj dkMZ la[;k&39863] jkenkl iq= cqf/kjke vkfn }kjk c;ku fn;k x;k fd fodzsrk ls mUgs 15 fdxzk0 xsgwa 20 fdxzk0 pkoy o 02 fdxzk0 phuh dqy :i;k 230-00 esa feyrk gS tks fu/kkZfjr nj ls vf/kd gSA 4- vUR;ksn; ;kstuk ds dkMZ /kkjd Hkxokunhu dkMZ la[;k&068597] v'kksd dqekj dkMZ la[;k&068598] jkepfj= dkMZ la[;k&068555] jkeyky dkMZ la[;k&068421] eukst dkMZ la[;k&944869 vkfn }kjk c;ku fn;k x;k fd fodzsrk }kjk mUgs 10 fdxzk0 xsgwa 25 fdxzk0 pkoy o 02 fdxzk phuh :i;s 130-00 esa feyrk gS tks fu/kkZfjr nj ls vf/kd gSA"
3. The order dated 23.11.2012 was assailed by the petitioner before this Court in Writ Petition No. 503 of 2013 (MB). The said writ petition was disposed of by this Court on 21.1.2013 with liberty to the petitioner to prefer an appeal against the suspension order. While disposing of the said writ petition this Court directed the authority concerned to furnish the copies of the documents, asked for, to the petitioner. It is alleged that after receiving the copies of the relevant documents, the petitioner filed his reply to the show cause notice denying the charges levelled against him. On 22.4.2013, the Sub-Divisional Magistrate passed an order whereby the fair price shop license of the petitioner was cancelled on the premise that no reply was submitted by the petitioner to the show cause notice and as such the charges levelled against the petitioner stood admitted. The relevant portion of the order dated 22.4.2013 is extracted below:
"ijUrq fodszrk }kjk viuk Li"Vhdj.k izLrqr u dj vius izkFkZuk i= fnukad 28-01-2013 ds lkFk ek0 mPp U;k;ky; y[kuÅ csap y[kuÅ esa nk;j fjV ;kfpdk la[;k&[email protected] ¼,e0ch0½ txUukFk cuke m0iz0 ljdkj ,oa vU; eas ikfjr vkns'k fnukad 21-01-2013 dks izLrqr djrs gq, f'kdk;rh i= ,oa tkap vk[;k dh izfr miyC/k djkus dk vuqjks/k fd;k x;k gSA ek0 mPp U;k;ky; y[kuÅ csap y[kuÅ }kjk ikfjr vkns'k ds vuqikyu esa fodszrk dks fnukad 08-02-2013 tkap vk[;k ,oa f'kdk;rh i= dh izfr miyC/k djk nh x;hA ijUrq fodszrk }kjk tkap vk[;k ,oa f'kdk;rh i= dh izkfIr djus ds mijkUr Hkh fodszrk }kjk yxk;s x;s vkjksiksa ds lEcU/k esa viuk fdlh Hkh izdkj dk Li"Vhdj.k izLrqr ugh fd;k x;kA blls Li"V gS fd fodszrk dks fn;s x;s funsZ'kksa dk vuqikyu ugh fd;k x;k gS vkSj ml ij yxk;s x;s leLr vkjksi Lohdkj gSA mYys[kuh; gS fd iwoZ esa Hkh forj.k esa ik;h x;h vfu;ferrkvksa ds dkj.k dk;kZy; vkns'k la[;k&843 fnukad 03-03-2011 }kjk fodszrk dh nqdku dk vuqcU/k fuyfEcr fd;k x;k FkkA bl izdkj Li"V gS fd fodszrk }kjk forj.k esa ckj&ckj vfu;ferrk dh x;h gSA"
(emphasis supplied)
4. The appeal preferred by the petitioner against the order dated 22.4.2013 has been rejected by the Additional Commissioner (Judicial), respondent no.2 herein, by his order dated 3.3.2016. In his order, on the basis of the record, the Appellate Aauthority has recorded a categorical finding that the reply submitted by the petitioner was received in the office of the Sub-Divisional Magistrate on 13.3.2013, however, the appeal has been rejected on the ground that the petitioner failed to furnish any documentary evidence in support of his plea. The relevant portion of the order dated 3.3.2016 to which the attention of the Court was drawn by the learned counsel for the petitioner is extracted below: -
"6& ....yxHkx nks ekg dk le; O;rhr gks tkus ds mijkUr dk;kZy; i= la[;k [email protected]&[email protected] fnukad 17-01-2013 }kjk iqu% Li"Vhdj.k izLrqr djus dk funsZ'k fn;k x;k] ijUrq m0 n0 [email protected] }kjk viuk Li"Vhdj.k izLrqr u dj ek0 mPp U;k;ky; y[kuÅ casp] y[kuÅ esa nk;j fjV ;kfpdk la0 [email protected]¼,e0ch0½ txUukFk cuke m0iz0 ljdkj ,oa vU; esa ikfjr vkns'k fnukad 21-01-2013 izLrqr dj f'kdk;rh izkFkZuk&i= ,oa tkap vk[;k dh izfr miyC/k djkus dk vuqjks/k fd;k x;kA ek0 mPp U;k;ky; ds vkns'k ds vuqikyu esa fnukad 08-02-2013 dks [email protected] dks tkap vk[;k ,oa f'kdk;rh izkFkZuk&i= dh izfr miyC/k djk;h x;hA rRi'pkr~ vihydrkZ }kjk Mkd ls Li"Vhdj.k Hkstk x;kA tSlk fd LihM iksLV ua0 RU193692848IN ls Li"V gS] tks voj U;k;ky; esa fnukad 13-03-2013 dks izkIr gqvkA bl izdkj bl izdj.k ds fuLrkj.k esa tks foyEc gqvk gS og vihydrkZ ds dkj.k gh gqvk gS] blfy, vihydrkZ }kjk m)r mDr O;oLFkk bl izdj.k esa ykxw ugha gksrh gSA Li"Vhdj.k ds lkFk vihydrkZ }kjk dFkuksa dh iqf"V Li:i dksbZ lk{; ugha layXu fd;k x;kA tcfd dk;kZy; vkns'k la0 1265 fnukad 23-11-2012 }kjk vihydrkZ dh nqdku dk vuqcU/k i= fuyfEcr dj yxk;s x;s vkjksiksa ds lEcU/k esa 15 fnol ds Hkhrj lqlaxr lk{;ksa lfgr Li"Vhdj.k izLrqr djus dk funsZ'k fn;k x;k FkkA ,slh fLFkfr esa vihydrkZ dk ;g nkf;Ro Fkk fd vkjksiksa ds lEcU/k esa lk{;[email protected] vfHkys[kksa lfgr Li"Vhdj.k izLrqr djrs] ijUrq muds }kjk ,slk u dj Mkd ls Li"Vhdj.k fcuk lk{;ksa ds Hkstdj bfrJh dj yh xbZA vihydrkZ ij tks vkjksi yxk;s x;s gSa os xEHkhj izd`fr ds gSaA vihydrkZ }kjk tks lk{; bl U;k;ky; esa izLrqr fd;s x;s gSa os QksVks izfr;ka gSa tks izekf.kr ugha gSa] blfy, lk{; esa xzkg~; ugha gSaA vihydrkZ }kjk Li"Vhdj.k dh iqf"VLo:i voj U;k;ky; esa lqlaxr lk{;@vfHkys[k u izLrqr djuk ;g n'kkZrk gS fd mlds Åij yxk;s x;s vkjksi lgh gSaA ,slh fLFkfr esa vihydrkZ dh mfpr nj dh nqdku dk vuqcU/k i= fujLr dj fo}ku voj U;k;ky; }kjk ,slh dksbZ vfu;ferrk ugha dh xbZ gS ftlls vihy Lrj ij mlesa dksbZ gLr{ksi fd;k tk ldsA vihy cyghu gS vkSj fujLr gksus ;ksX; gSA"
(emphasis supplied)
5. Shri Hari Shanker Tewari, learned counsel for the petitioner has submitted that the charges leveled against the petitioner were absolutely vague and on the basis of the said charges no inquiry ought to have been held against the petitioner. The counsel has further submitted that the cancellation order having been passed without taking into account the reply submitted by the petitioner to the show cause notice and without holding any oral inquiry cannot be sustained and is liable to be set aside. The counsel has further submitted that even if no reply is submitted to the show cause notice, it does not absolve the Competent Authority to hold an oral inquiry against a fair price licensee. In so far as the appellate order is concerned the counsel has submitted that the burden to prove that the petitioner was overcharging was upon the authorities and not upon the petitioner as has been held by the Appellate Authority.
6. Per contra, the learned Standing Counsel appearing on behalf of the State-respondents has submitted that inspite of repeated opportunities, the petitioner, did not submit his reply to the charges levelled against him, hence the Sub-Divisional Magistrate had no option but to pass the order against him.
7. Heard learned counsel for the parties and perused the record.
8. The State Government has issued a Government order dated 29.07.2004, laying down the procedure for suspending/ cancelling the fair price shop license/agreement. As per clause 4 of the Government order dated 29.07.2004, before cancelling the fair price shop license, the Competent Authority is obliged to issue a show cause notice containing the charges levelled against the licensee. The Competent Authority is required to pass a speaking order after holding an oral inquiry in accordance with the principles of natural justice.
9. In Puran Singh v. State, (2010) 2 UPLBEC 947, a Full Bench of this Court has held that paragraph nos. 4 and 5 of the Government order dated 29.07.2004 contemplate a full fledged inquiry before the license/ agreement of a fair price shop is cancelled. The Full Bench has held that as per the Government order dated 29.07.2004 an opportunity of hearing is required before passing an order of cancellation.
10. In Writ - C No. 3611 of 2014, Sanjay Kumar v. State, following Puran Singh (Supra) a learned Single Judge of this Court has held as follows:
"The procedure for holding an inquiry for cancelling the licence of the fair price shop has been provided in the Government Order dated 29.07.2004 read with U.P. Essential Commodities Distribution Order 2004.
The aforesaid Government Order and Distribution Order came up for consideration before the Full Bench of this Court in case of Puran Singh Vs. State of U.P. and others 2010 (3) ADJ 659 (FB). The Court considering para 4 and 5 of the Government Order dated 29.07.2004 held that it contemplates a full-fledged inquiry pursuant to the show cause notice for cancellation and then a final decision in the matter.
The aforesaid decision was followed by the learned Single Judge in his judgement and order dated 28.11.2014 passed in Writ-C No. 12737 of 2013 and referring to paragraph 35 of the Full Bench decision in Puran Singh's case his Lordship observed that a full-fledged inquiry is necessary before cancelling the agreement and it would require service of the charges, along with 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 Inquiry Officer.
In other words it means that an independent inquiry before passing an order of cancellation of licence to run a fair price shop is mandatory and a show cause notice simplicitor is not sufficient to conform to the principles of natural justice.
It is obligatory upon the authorities to hold a full-fledged inquiry against the fair price shop dealer, after serving of the charge sheet with regard to the date and place where the hearing will took place and to give an opportunity of hearing. This is in addition to the show cause notice issued for the purposes of suspension of the licence of the fair price shop."
(emphasis supplied)
11. As already mentioned above, in the case on hand, the Sub-Divisional Magistrate has cancelled the license of the petitioner on the ground that the petitioner had not submitted his reply to the show cause notice. Whereas, it is the specific case of the petitioner that after receiving the relevant documents he had submitted his reply to the show cause notice in the office of the Sub-Divisional Magistrate concerned. Though in the counter affidavit filed on behalf of the State-respondents it has been reiterated that no reply was submitted by the petitioner to the show cause notice but neither the finding to the contrary recorded by the Appellate Authority has been assailed by the respondents nor any attempt has been made by them to explain the same by producing the relevant records. However, a perusal of the appellate order would show that the Appellate Authority has recorded a categorical finding that the petitioner had sent his reply by speed post, which was received in the office of the Sub Divisional Magistrate on 13.3.2013. A bald denial is no denial in the eyes of law. Whether or not the petitioner had submitted his reply to the show cause notice is a pure finding of fact. In the circumstances, this Court is left with no other option but to accept the finding recorded by the Appellate Authority that the petitioner had in fact submitted his reply to the show cause notice.
12. The Sub-Divisional Magistrate has cancelled the license of the petitioner on the ground that the petitioner had not submitted his reply to the show cause notice and as such the charges levelled against him stood proved. In view of the finding to the contrary recorded by the Appellate Authority, the order passed by the Sub-Divisional Magistrate cannot be sustained and is liable to be set aside.
13. In so far as the appellate order is concerned, in view of the settled legal position that the burden to prove overcharging is upon the authorities, the conclusion drawn by the Appellate Authority that since the petitioner did not adduce any documentary evidence in support of his contentions, the charge levelled against him stood proved also cannot be sustained and the appellate order is liable to be set aside. In WRIT - C No. 60664 of 2009, Daroga Lal Katiyar versus State of U.P. and others a learned Single Judge of this Court has held as under:
"3. The Cancelling Authority has taken two grounds. One, some beneficiaries have made complaint that they were not distributed food-grains and overcharging. For the purpose of allegation of non distribution, Deputy Collector has not at all examined any of the record i.e. either ration cards or distribution/sale register so as to find out whether therefrom it is evident that food-grains have not been distributed by petitioner, inasmuch as, orally it is stated by some persons but the same was denied by petitioner and hence examination of record was necessary. Secondly, in respect of charging higher price, Cancelling Authority has said that petitioner did not adduce any evidence to show that he is not charging higher price though he himself has not referred to any evidence on the basis whereof it is shown that petitioner in charging higher price. The onus lie upon the authorities concerned to prove that the petitioner is overcharging and not vice versa."
(emphasis supplied)
14. For the reasons mentioned above, the writ petition is allowed. The impugned orders dated 22.4.2013 passed by the Sub-Divisional Magistrate and the order dated 3.3.2016 passed by the Additional Commissioner (Judicial) are hereby quashed.
15. No order as to cost.
Order Date :- November 29, 2019 Anupam