Court No. - 10Case :- WRIT - C No. - 37019 of 2019
Petitioner :- Prem Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Santosh Kumar Upadhyay,Vinod Kumar Upadhyay Counsel for Respondent :- C.S.C.,Rajesh Yadav
Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioner and learned Standing Counsel appearing for the State-respondents.
Pursuant to the order dated 16.11.2019 learned Standing Counsel has filed a copy of the instructions dated 23.11.2019 given by the Sub Divisional Magistrate, Sadar District Muzaffar Nagar, the same is taken on record.
Present petition has been filed for quashing the impugned order dated 7.9.2019 passed by respondent no.2 (Annexure-11 to the writ petition). A further prayer has also been made for commanding and directing the respondents to restore the license of the petitioner and release monthly quota of essential commodities.
On 16.11.2019 following order was passed:-
"The petitioner was proceeded against by an order dated 31.1.2019. Thereafter, the enquiry commenced and the licence was cancelled by an order dated 21.3.2019. In the meantime, the basis of the suspension and the cancellation i.e. the first information report itself ended as a final report was filed. The Appellate Court, therefore, on 28.12.2018 remanded the matter directing the sub Divisional Officer to consider the filing of the final report.
Learned counsel for the petitioner submits that when the Sub Divisional Officer was deciding the case after the remand it looked into certain fresh complaints and thereafter passed the order.
Learned counsel for the petitioner submits that there was no show cause notice for the fresh complaint filed on 12.2.2019.
Learned Standing Counsel upon being confronted by this finding of the Sub Divisional Officer could not point out that there was any further notice after the appellate court had remanded the matter.
Learned Standing Counsel may take instructions Put up this case as fresh on 25.11.2019."
Along with the instructions, a copy of the notice dated 30.4.2019 has been annexed. One report is that the petitioner was not available and his son has received the notice. The back side of the notice bearing signature of Sachin Kumar s/o of Sri Prem Kumar has been annexed. Apart from that notice was also sent by the registered post dated 6.4.2019 to the petitioner.
In the impugned order itself it has been mentioned that the petitioner had submitted his reply, therefore, the petitioner was aware of the proceedings initiated before passing of the order dated 7.9.2019. The order also mentions that the petitioner had in fact participated in the inquiry proceedings and one of the applications dated 2.7.2019 is mentioned in the order at page 78. It is being asserted that fresh complaints were looked into but there was no show-cause notice.
On perusal of the record I find that initially the authority concerned, in his order dated 21.3.2018 has mentioned the relevant months, however, apparently findings recorded were superficial in nature. Under such circumstances, the appeal of the petitioner was remanded back for passing fresh reasoned orders. It is only thereafter these proceedings were initiated. This time in the fresh order impugned herein regarding same months July 2017, August 2017 and September 2017, which were also included in the initial order, detailed findings have been recorded.
In such view of the matter, I am not inclined to interfere under Article 226 of the Constitution, particularly, when the petitioner has statutory alternative remedy by way of filing appeal before the Commissioner of the Division and can suitably raise all such grounds including that no proper opportunity of hearing was given to the petitioner while passing the fresh orders i.e. order dated 7.9.2019, impugned herein.
It is needless to say that sufficient opportunity was extended for the fresh allegations or not shall be specifically considered by the appellate authority. In case, from perusal of the record it appears to the appellate authority that the opportunity afforded was not sufficient, appropriate orders shall be passed by the appellate authority concerned.
It is further provided that, in case, the appeal is filed within a period of fifteen days from today no objection regarding limitation shall be raised by the appellate authority and the appeal shall be decided on its own merits in accordance with law, preferably within a period of two months from the date of filing of the appeal.
With this observation, petition stands disposed of.
Order Date :- 28.11.2019/Aditya