Court No. - 10
Case :- WRIT - C No. - 44906 of 2012 Petitioner :- Smt. Prakashi Devi Respondent :- State Of U.P. Thru Secy. And Others Counsel for Petitioner :- B.K. Pandey,S.K. Pandey,S.K. Tiwari Counsel for Respondent :- C.S.C.,Diwakar Singh
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri S.K. Tiwari, learned counsel for the petitioner and Shri B.B. Pandey, learned Additional Chief Standing Counsel for the State respondents.
By means of present writ petition, the petitioner has assailed the validity of order impugned dated 18.08.2011 passed by Sub Divisional Magistrate, Tehsil Nizamabad, Disrict Bijnour, whereby, allotment of fair price shop of petitioner has been cancelled as well as the order dated 22.08.2012 passed by second respondent whereby, the Appeal in question has also been rejected.
It appears that on some complaint of certain villagers regarding malpractice in distribution of essential commodities against the fair price shop of petitioner, the inquiry was got conducted by the Supply Inspector on 17.12.2010 and thereafter the show cause notice has been issued on 27.12.2010. The same was duly responded by the petitioner vide reply dated 28.01.2011. It appears that again a joint team was constituted to enquiry into the matter, which has submitted its report on 11.02.2011 and finally the license of petitioner's fair price shop has been cancelled vide order dated 17.02.2011 passed by Sub Divisional Magistrate, Nazibabad. The petitioner has assailed the validity of the said order in Appeal no.30/2010-11 on the ground that while conducting the enquiry on the second occasion, at no point of time the petitioner was being incorporated and even reply has not been sought in pursuance thereto. The said appeal was allowed vide order dated 16.05.2011 setting aside the order of cancellation dated 17.02.2011 and remanding the matter back to the Licensing Authority for revisiting the same after providing proper opportunity of hearing to the petitioner. Thereafter the petitioner has been asked to submit her reply in pursuance to the order dated 23.07.2011. Pursuant thereto, the petitioner has submitted her reply on 29.07.2011 annexing therein statement of certain card holders and finally the orders impugned have been passed and aggrieved with the same, the petitioner is before this Court.
Learned counsel for the petitioner submits in support of his submission states that in the present matter the entire action has been taken on the pretext of complaint lodged by six persons belonging to three families, who have rivalry against the petitioner due to village parti-bandi. He further submits that show cause notice was duly responded by the petitioner refuting the allegation so levelled against the petitioner. Submission has also been made that the inquiry committee was constituted for some other purpose but on complaint of some villagers, the inquiry has been conducted and the license in question was cancelled. He further submits that at the time of conducting the enquiry on the second occasion, the petitioner had never been incorporated or participated and the same was ex-parte. Even after order of Appellate Authority dated 16.05.2011, at no point of time any charge-sheet has ever been served upon the petitioner and only the copy of the second inquiry report has been provided to the petitioner asking the petitioner to submit her reply alongwith evidence. He further made submission that so far as the previous conduct of petitioner is concerned, it is true that on several complaints, enquiry was conducted in the matter but at no point of time, the license in question was ever cancelled and only on the influence of Pradhan of the village, the present order of cancellation has been passed. Even after passing the present order of cancellation, the Appellate Authority has accorded interim protection to the petitioner but unfortunately, the appeal in question has been dismissed. In this backdrop, he submits that the entire action so taken against the petitioner is in the 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)."
It is also 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. It is further 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 and 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, Shri B.B. Pandey, learned Additional Chief Standing Counsel has vehemently opposed the writ petition and submits that admittedly the inquiry was conducted by three members committee, in which serious allegations were levelled against the petitioners regarding mal-distribution of essential commodities, thereafter, the petitioner has been asked to submit her reply and finally the Licensing Authority has considered each and every aspect of the matter and proceeded to cancel the license of the petitioner and the same has also been approved by the Appellate Authority and as such, 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.
So far as the argument in respect of proper opportunity of hearing is concerned, this is admitted situation that initial inquiry was ex-parte to the petitioner and at no point of time, the petitioner was given any opportunity to participate in the said inquiry. It also appears that while relegating the matter to the Licensing Authority, the desire of the Appellate Authority is to complete the inquiry in consonance with the Uttar Pradesh Scheduled Commodities Distribution Order, 2004 as well as the Government Order 29.07.2004 after providing proper opportunity to the petitioner to participate in the same but at no point of time, any such participation has been ensured and in most arbitrary manner, while giving the show cause notice again only the copy of enquiry report has been provided to the petitioner without framing any charges and as such, the same appears to be an eye-wash of law.
Bare perusal of the orders impugned also goes to show that much emphasis has been placed upon the previous conduct of the petitioner. Admittedly, in the present matter, on several occasions on the complaint of villagers, the enquiry was conducted and the report was submitted and finally, the warning has been issued to the petitioner but this is also admitted situation that at no point of time, the license in question has ever been cancelled and as such, the previous conduct of the petitioner cannot be a good ground for cancelling the license of petitioner's fair price shop.
In view of the above, this Court is of the considered opinion that both the orders impugned cannot sustain in pursuance of Government Order dated 29.07.2004 and accordingly, both the orders impugned are set aside. The writ petition stands allowed. The Authorities are directed to ensure supply of the essential commodities to the petitioner's fair price shop for distribution forthwith. 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 :- 30.1.2019 A. Pandey