Court No. - 10
Case :- WRIT - C No. - 62983 of 2013 Petitioner :- Kailash Prasad Respondent :- State Of U.P. Thru Secy. And 2 Others Counsel for Petitioner :- Harish Kumar Tripathi,Amar Nath Tiwari,Rishi Kant Rai,V.B. Mishra,Vinay Kumar Mishra Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Vinay Kumar Mishra, learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State respondents.
The petitioner is before this Court assailing the validity of the order dated 21.4.2011 passed by the third respondent, Sub Divisional Magistrate, Kasya, District Kushinagar, by which the fair price shop licence of the petitioner has been cancelled as well as the order dated 31.10.2013 passed by the second respondent, Commissioner, Gorakhpur Division, Gorakhpur, whereby the appeal filed by the petitioner has been dismissed.
Learned counsel for the petitioner states that the petitioner was a fair price shop agent of village Kuchiya Mathiya, Vikas Khand Fajil Nagar, Tehsil Kasya, District Kushinagar since long time. The petitioner received the essential commodities for the month of December, 2010 on 25.11.2010. The verification of the stock was made ex- parte by the respondent authority on 2.12.2010 at 2.40 PM in which certain discrepancies were found. Consequently, the fair price shop licence of the petitioner was suspended on 4.10.2010 and a show cause notice was issued to him to which he has submitted his reply on 27.1.2011, denying all the allegations levelled against him. By the impugned order dated 21.4.2011 the Licencing Authority has cancelled the fair price shop licence of the petitioner. The said order was assailed by the petitioner by preferring an appeal and the appellate authority has also dismissed the appeal on 31.10.2011 and affirmed the order of the licencing authority dated 21.4.2011. In the present matter, the first information report was also lodged against the petitioner on 30.12.2010 and the same was registered as Case Crime No.564 of 2010 under Section 3/7 of Essential of Commodities Act at Police Station Pataherwa, District Kushinagar. In the aforesaid criminal case, the final report was filed by the police and the same was accepted by the Court concerned on 16.4.2013. In support of his submission, he has placed reliance on the judgement of this Court in Jagdish Narayan Mishra Vs. State of U.P. and others (Civil Misc. Writ Petition No. 2851 of 2008), Smt. Raj Kumar Singh Vs. State of U.P. and others (Civil Misc. Writ Petition No. 1766 of 2011), Brij Sewak Gupta Vs. State of U.P. and 3 others (Civil Misc. Writ Petition No. 10672 of 2017).
Per contra, learned Additional Chief Standing Counsel has vehemently opposed the writ petition and tried to contend that so far as the aforesaid proceeding is concerned, ample opportunity has been extended to the petitioner. After issuance of the show cause notice and due verification, his fair price shop licence was suspended on 4.10.2010. The suspension order was eventually culminated into cancellation of the fair price shop licence on 21.4.2011. The cancellation order has also been approved by the appellate authority on 31.10.2013 and certain discrepancies have also been indicated regarding verification as well as discrepancies, which are emerging from the final report duly submitted by the police. He very fairly states that so far as the final report is concerned, the same has been accepted by the District Magistrate and at no point of time the State has assailed the validity of the final report, which has been accepted by the concerned ACJM on 16.4.2013. So far as the criminal proceeding is concerned, the same has been finalized and reached to its conclusion and at this stage, he is not in position to assail the validity of the same. No interference is required in the matter and the writ petition is liable to be dismissed.
The Court has proceeded to examine the record in question and perused the impugned orders and finds that the petitioner was running the fair price shop in question since long time and he was distributing the essential commodities at the rates fixed by Food and Civil Supply Department among valid card holders. He received the essential commodities for the month of December, 2010 on 25.11.2010 and the verification of the stock was made on 2.12.2010 at 2.40 PM in which certain discrepancies were found. Consequently, his fair price shop licence was suspended on 4.10.2010 and he was issued a show cause notice to which he had submitted his reply on 27.1.2011. Finally, the fair price shop licence of the petitioner was cancelled by the licensing authority 21.4.2011. The same was assailed by the petitioner in appeal and the appellate authority has also dismissed the appeal on 31.10.2011. In the present matter, the first information report was lodged against the petitioner on 30.12.2010 registered as Case Crime No.564 of 2010 under Section 3/7 of Essential of Commodities Act at Police Station Pataherwa, District Kushinagar. In the aforesaid criminal case, after investigation the final report with due permission from the concerned District Magistrate was filed and the same was accepted by the Court concerned vide order dated 16.4.2013. The entire action so initiated on the pretext of involvement of the petitioner in the aforesaid criminal case was found to be incorrect. 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. The order must be passed after recording reason and in absence of any such reason, the order is liable to be quashed. The Court has also gone through the aforesaid judgements relied upon by learned counsel for the petitioner, wherein the writ petitions were allowed and the orders were set aside on the ground that once the authority is empowered to exercise quasi-judicial power then that power has to be exercised in judicial way by passing the reasoned speaking order after considering the material available on record independently and he cannot depend his decision upon the assessment made by any other authority. Even otherwise, also merely on the basis of FIR under Section 3/7 Essential Commodities Act, order impugned cancelling fair price shop license cannot sustain vide Jagdish Narain Misra v. State of U.P. & Ors., Writ Petition No.28051 of 2008 and Raj Kumari v. State of U.P. & Ors., 2011 LawSuit (All) 834.
In view of the aforesaid factual and legal position, the impugned orders cannot be sustained 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 :- 23.1.2019 RKP