Court No. - 10
Case :- WRIT - C No. - 55043 of 2013 Petitioner :- Smt. Raj Kai Devi Respondent :- The State Of U.P. Thru Secy. And 4 Others Counsel for Petitioner :- B.K. Chaturvedi,R.K. Upadhyay Counsel for Respondent :- C.S.C.,R.C. Upadhyay and Case :- WRIT - C No. - 65141 of 2015 Petitioner :- Raj Kai Devi Respondent :- State Of U.P. And Anr.
Counsel for Petitioner :- Rakesh Kumar Upadhyay,Shailendra Kumar Singh Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri B.K. Chaturvedi, learned counsel for the petitioner and learned Standing Counsel for the State respondents.
In both the abovemetioned Writ Petitions in question, as common question of law is being engaging the attention of this Court, the matters are being decided collectively.
In Writ Petition no.55043/2013, the petitioner is assailing the validity of order dated 21.09.2013 passed by Sub Divisional Magistrate, Sadar, District Ballia, whereby, the Sub Divisional Magistrate concerned has stayed the operation of order dated 19.09.2013 restoring the license of fair price shop of the petitioner. The said action of the respondent has been assailed before the Division Bench of this Court and this Court vide order dated 04.10.2013 has proceeded to stay the order impugned dated 21.09.2013 with following effect:-
"It is submitted by Sri B.K. Chaturvedi, learned counsel for the petitioner that the Sub-Divisional Magistrate concerned by the Order dated 19th September, 2013 restored the licence of the petitioner in respect of the Fair Price Shop in question, subject to imposition of penalty of forfeiture of Rs. 5,000/- from the security deposit made by the petitioner. It is submitted that the Order was passed after perusing the entire record including the Report submitted by the Area Rationing Officer. However, the submission proceeds, by the Order dated 21st September, 2013, the Sub-Divisional Magistrate concerned stayed the operation of the Order dated 19th September, 2013 on the ground that Area Rationing Officer in his Report did not consider certain Complaint dated 11th September, 2013 made by Rajendra and Other.
It is submitted that the Sub-Divisional Magistrate concerned having passed the Order dated 19th September, 2013, has no power to review the said Order dated 19th September, 2013 or to stay the operation of the said Order.
Matter requires consideration. Issue Notice pending admission.
Notice on behalf of the respondent Nos. 1 to 4 has been accepted by the learned Standing Counsel.
Notice on behalf of the respondent No. 5 has been accepted by Sri R.C. Upadhayay, learned counsel for the said respondent.
Therefore, no notice need be sent to the respondents.
Counter Affidavit on behalf of the respondents may be filed by 28th October, 2013.
Rejoinder Affidavit may be filed by the next date fixed in the matter. List this case on 19th November, 2013.
Heard on the question of grant of interim relief.
Having regard to the facts and circumstances of the case, and having considered the submissions made by the learned counsel for the parties, it is provided that till the next date fixed in the matter, the Operation of the Order dated 21st September, 2013 (Annexure-6 to the Writ Petition) will remain stayed."
Admittedly, the said interim order is still continuing in the matter.
In the connected Writ Petition no.65141/2015, the petitioner has challenged the order dated 22.08.2014 passed by the Sub Divisional Magistrate, Sadar, District Ballia, whereby, the fair price shop license issued in favour of petitioner has been cancelled as well as Appellate order dated 05.06.2015 passed by the Commissioner, Azamgarh Region, Azamgarh in Appeal no.249/B, C-201515000091 of 2014-15 (Rajkai Devi vs. S.D.M.
Sadar/Dy Collector, Ballia) under Clause 28(3) of U.P. Scheduled Commodities Supply Order 2004.
The brief facts, which are emerging from the record in question are as follows:-
It appears from the record that certain complaints were lodged by the card holders and on the basis of same, the matter was enquired by the B.D.O., who had submitted his report on 07.08.2013, wherein, it was alleged that the petitioner was not distributing the food items from last seven months and on the spot, the shop was handled and operated by some male person, whereas, at no point of time any such leave was accorded by the Competent Authority. On the basis of said complaint and enquiry report, the license of the petitioner's fair price shop was suspended vide order dated 02.09.2013 and the petitioner was asked to submit response within fifteen days time. In response thereof, the petitioner has submitted detailed reply annexing therein 10 notarized affidavits refuting such allegations.
On the basis of explanation so submitted by the petitioner, the license was restored vide order dated 19.09.2013 but on the next date itself, the license was again placed under suspension vide order dated 21.09.2013. The same was subjected to challenge before this Court in Writ Petition no.55043/2013, wherein, the aforesaid interim order was accorded. While according an interim protection, this Court has clearly proceeded to observe that the Officer concerned has no authority whatsoever to review the order passed by him on the same complaint.
In this backdrop, it has been alleged on behalf of petitioner that in spite of interim protection accorded by this Court, the petitioner was not permitted to lift the quota and left with no other option, she has moved contempt application, wherein, notice has been issued to respondents and being annoyed by the same, the Authority has passed suspension order on 06.01.2014 and finally the license in question was cancelled and the same was approved by the appellate authority.
In support of his submission, learned counsel for the petitioner has placed reliance on the inquiry report dated 19.02.2014 submitted by Tehsildar and as such, it is sought to be contended that the entire action has been taken at the behest of one Rameshwar Prasad with whom there was serious dispute with the petitioner and even the first information report had also been lodged in the year 2007. The same has also been brought on record. The case has also been set up that once on the basis of some allegation, the fair price shop license has been cancelled and thereafter an interim order was accorded in favour of petitioner and the same is still subsisting, then on the third occasion, based on similar complaint moved by an incumbent who has personal grudge with the petitioner, the shop in question cannot be placed under suspension followed by the order of cancellation as well as appellate order that too without taking any leave from this Court and as such, the said action of the respondent authorities cannot sustain and the same is liable to be set aside.
On the other hand, learned Standing Counsel has vehemently opposed the arguments advanced by learned counsel for the petitioner by submitting that no doubt so far as the second suspension order dated 21.09.2013 is concerned, the same has been stayed by an order dated 04.10.2013 but in the garb of the said interim order, the petitioner cannot be permitted to indulge in malpractices and once it has been brought into the notice of the Authority concerned that there are certain irregularities in distribution of the essential commodities, in such a situation, the Authority would not be bereft of the power to suspend the license of the petitioner and the same was enquired by the Tehsildar after giving notice to the petitioner and subsequently, the same has also been approved by the Appellate Authority and as such, both the writ petitions are liable to be dismissed.
Heard rival submissions and perused the record.
In both the present matters, this is admitted situation that the Division Bench of this Court has intervened in the matter and admittedly prior to order of suspension dated 06.01.2014, twice the suspension orders have been passed by the Authority. No doubt the stay vacation application has been filed by the State respondents before this Court but at no point of time, any leave was accorded by this Court before proceeding the third time in the matter. So far as the allegation, which are levelled against the petitioner that prompted the Authority to suspend the license of the petitioner in the year 2014 is concerned, the same are also vague and evasive and the report submitted by the Tehsildar concerned also substantiate that there is grudge between the petitioner and the complainant Rameshwar Prasad and even while passing the order of suspension as well as cancellation the procedure, which is provided in the Government Order dated 29th July, 2004 as well as law laid down by Full Bench of this Court in Puran Singh v. State of U.P. & Ors., 2010 (3) ADJ 659 (FB) has also been given a go- bye. This is also admitted situation that the petitioner is widow and the alleged allegations were levelled in the year 2013 and initially after an enquiry, the suspension order was restored. In such a situation, there was no reason or occasion to resort the suspension order second time. Even at that juncture, the Division Bench of this Court has intervened in the matter and stayed the suspension with a relevant query. The said query is still unanswered by the State and in such a situation, this Court is of the considered opinion that all the orders impugned cannot sustain in the eyes of law.
Consequently, all the orders impugned in both the writ petitions are set aside. Both the writ petition stand 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 :- 22.1.2019 A. Pandey