Court No. - 10
Case :- WRIT - C No. - 63525 of 2012 Petitioner :- Mam Chand Respondent :- The State Of U.P. And Others Counsel for Petitioner :- Bablu Singh,Santosh Tripathi,V.K. Jaiswal Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
Heard learned counsel for the petitioner and Shri Sanjay Kumar Singh, learned Standing Counsel.
The petitioner is before this Court assailing the order dated 19.10.2011 passed by third respondent by which his fair price shop license has been cancelled and also the order dated 26.12.2017 passed by second respondent dismissing the appeal in question.
It appears that on the basis of certain complaint and on the basis of alleged enquiry the license of the petitioner was suspended. Thereafter, an explanation from the petitioner was called and considering the same the order impugned for cancelling the license was passed and the same was approved by the appellate order. It is submitted by learned counsel for the petitioner that before cancellation of the allotment of fair price shop license in favour of the petitioner, he was not extended any opportunity and the entire action taken by the respondents is in teeth of the procedure laid down in the Government Order dated 29th July, 2004 and the U.P. Scheduled Commodities Distribution Order, 2004 (Distribution Order, 2004) and the provisions of the same had not been followed in the present case, therefore, cancellation of allotment of fair price shop license in favour of the petitioner is illegal and against the principle of natural justice. The aforesaid Government Order dated 29th July, 2004 and the Distribution Order, 2004 came up for consideration before the Full Bench of this Court in Puran Singh v. State of U.P. & Ors., 2010 (3) ADJ 659 (FB) in which it is held that in case after suspension of the agreement to run fair price shop the authority decides to hold an enquiry for cancellation of the agreement, then that requires full fledged enquiry. Relevant para 35 of the said judgment is quoted as under:-
"35. Para 4 and 5 of the Government Order clearly permits fulfledged enquiry pursuant to the show cause notice for cancellation and then final decision in the matter. So far the order of suspension is concerned Government Order do not provide any appeal and at the same time there was no contemplation of signing an agreement as was made obligatory pursuant to Distribution Order of 2004."
It is contended that the judgment of Puran Singh (Supra) has also been followed by this Court, while passing the order dated 28.11.2014 in Writ C No.12737/2013 and as such, full fledged inquiry is necessary before cancelling the agreement and it would require service of the charges, alongwith 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 Enquiry Officer.
The said view has also been affirmed by this Court in Smt. Santara Devi vs. State of U.P. and others 2016 (2) ADJ.
Learned counsel for the petitioner has also contended that in the present matter at no point of time the procedure as has been contemplated in G.O. dated 29.7.2004 has ever been adhered. In support of his submissions, he has also placed reliance on the Division Bench judgment of this Court in Gulab Chandra Ram v. State of U.P. & Ors., 2009 (2) AWC 1066 as well as judgment in Mahendra Singh v. State of U.P. & Anr., 2016 (8) ADJ 732. Relevant para 13 of the judgment in Mahendra Singh (Supra) is quoted as under:-
"It is also well settled that an order which leads to civil consequences and have passed without opportunity must be passed in conformity with the principles of natural justice. Reference may be had in State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75; State of Orissa v Dr. (Miss) Binapani Dei, AIR 1967 SC 1269; Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405; Maneka Gandhi Vs. Union of India (1978)1 SCC 248 and D.K.Yadav Vs. J.M.A. Industries Ltd. Reported in 1993 ,SCC 259 Canara Bank vs. V.K.Awasthy (2005 (6) SCC 321), Bidhannagar (Salt Lake) Welfare Ass. vs. Central Valuation Broad and Others ((2007) 6 SCC 668) Devdutt vs. Union of India and others (2008(3) ESC 433(SC) and Suresh Singh vs. Board Of Revenue And 3 Ors. (2014 (5) ADJ 697)."
Learned counsel for the petitioner has vehemently contended that vague and evasive charges have been levelled against the petitioner at the instance of Gram Pradhan. While furnishing reply to the show cause notice, the petitioner had also filed notarised affidavits of certain card holders consisting of Sukhbiri, Nand Ram and Husal Pal, who were the complainants, denying any complaint against the petitioner's fair price shop and specifically asserting on oath that forged and false complaints were made against the petitioner due to enmity. It is contended that at no point of time the said notarised affidavit had been considered by the licensing authority and in most arbitrary manner the finding of fact has been recorded, which is contrary to law.
It is contended that the petitioner kept on lifting the quota of essential commodities as well as kerosene oil from time to time and used to distribute the same to the valid card holders attached with the fair price shop of the petitioner with utmost sincerely and honesty. The respondent authorities have not complied with the guidelines and directions given in the G.O. dated 29.7.2004. It is also contended that distribution of essential commodities as well as kerosene oil by the petitioner was being verified regularly and continuously by the authorities concerned from time to time and accordingly distribution certificates were also used to be issued in favour of the petitioner regularly. At no point of time he has violated any terms and conditions of the license nor committed any irregularity in distribution of essential commodities.
Per contra, learned Standing Counsel has raised an objection that so far as the argument advanced by learned counsel for the petitioner is concerned, the same is unfounded on the ground that in most cursory manner, the petitioner has responded the show cause notice and as such, the Authority, on the spot, on the basis of allegations so levelled against the petitioner, has proceeded to cancel the fair price shop license of the petitioner and the same has also been approved by the Appellate Authority. In this backdrop, he submits that once concurrent finding of fact has been recorded by both the Authorities, then there is no reason or occasion to substitute the finding recorded by both the courts' below and as such, no interference is required in the matter.
Heard rival submission and perused the record.
Record in question reflect that in the present matter, the enquiry in question was conducted on two occasions. In the first inquiry report, which was submitted by Sub Divisional Magistrate, Modinagar, vague and evasive charges have been levelled to the effect that petitioner distributes lessor amount of kerosene oil but so far as the distribution of agricultural produces are concerned, no specific charges have been levelled and the other charges levelled against the petitioner are vague and evasive. In the said inquiry report names of certain villagers have been mentioned as complainants whereas the said incumbents eventually have supported the claim of the petitioner also and submitted that they have not made any complaint against the petitioner's fair price shop.
The second inquiry was conducted by the Senior Supply Inspector and the report was submitted on 29.09.2011. The said report has been appended as Annexure CA-3 to the counter affidavit. Bare perusal of the said inquiry report, it is reflected that name of certain villagers' have been mentioned in the same and on the next page, thumb impression alongwith signature have also been taken. Most surprisingly, the incumbents, who have made the said endorsement, their name does not find place in the inquiry and as such, the credibility of the said report is also at stake.
In view of the above facts and circumstances, this Court is of the considered opinion that without conducting the proper inquiry as has been prescribed in Government Order dated 29.07.2004, wherein, full fledged mechanism has been provided therein for initiation of an inquiry and finalization of the proceeding, the fair price shop license of the petitioner has been cancelled by the orders impugned. Consequently, both the orders impugned cannot sustain in absence of proper inquiry which is sought to be conducted in pursuance of Government Order dated 29.07.2004 and accordingly, both the orders impugned are set aside. The writ petition stands allowed. However, it is open for the Authorities concerned to hold a fresh inquiry in accordance with law and pass appropriate order but certainly after according ample opportunity of hearing to the petitioner also.
Order Date :- 20.12.2018 A. Pandey