Court No. - 10
Case :- WRIT - C No. - 26596 of 2014 Petitioner :- Raja Ram Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Arun Kumar Tiwari, Bhole Ram Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
Petitioner is before this Court assailing the order impugned dated 21.6.2013 passed by the third respondent as well as the order dated 31.3.2014 passed by the second respondent. With a further request directing the respondents to restore the licence of the fair price shop of the petitioner.
The record in question reflects that the petitioner is fair price shop dealer of Village Panchayat Tesahi Bujurg, Block Vijaipur, Tehsil Khaga, District Fatehpur. It seems some complaint was filed regarding irregularities committed by the petitioner on which on the basis of ex-parte inquiry, the third respondent proceeded to pass the order for suspension on 23.3.2013 without asking for any explanation. Pursuant to the suspension order, the petitioner approached to the authorities and submitted his explanation on 11.6.2013 denying the allegation of the order dated 23.3.2013 along with Distribution Register, affidavits of APL, BPL cardholders and letter of Gram Pradhan about distribution and other evidence. However, the third respondent vide order dated 21.6.2013 cancelled the license of fair price shop without considering the explanation of the petitioner. Aggrieved by the said order, the petitioner preferred an Appeal No. 137 of 2013 which too was dismissed by the second respondent without considering the grounds taken in the memo of appeal. Hence, this writ petition.
Learned counsel for the petitioner, in support of his submissions, precisely submits that the distribution of essential commodities has been made to the APL cardholders after completing all formalities, due to more cardholders some of them were not getting as much as had been made to the person who came first. The petitioner never received excess amount than price as well as entry had been made as per distribution and distribution had been made from the house of one Sahab Jade which was shown in the agreement submitted by the petitioner. The Gram Pradhan himself written letter about satisfactory distribution of the essential commodities by the petitioner. However, the Authority concerned proceeded to cancel the license by the order impugned on the ground of non-production of distribution register of three months without providing any opportunity in the inquiry proceeding, statement of the complainant and inquiry report and even never raised demand of the distribution register. He further submits that the persons (APL cardholders) who made complaint of getting Rs. 17/- per liter of Kerosene oil, are not affiliated with the shop of the petitioner and in fact they are affiliated with the shop of one Rahul Singh, village Teshahi Bujurg, District Fatehpur. He further submits that 625 APL cardholders are attached with the petitioner's shop and stock provided to him is only 49 quintal wheat and he is required to distribute 10 Kg. Wheat per cardholder and as such only those person got distribution of wheat who came first. He further submits that 65 BPL cardholders are attached with the petitioner's shop and allegation has been made by only one cardholder about getting Rs. 230/- in place of Rs. 221.50/- meaning thereby complaint has been made due to enmity as such both the orders are illegal and liable to be quashed by this Court. Neither, the respondent paid any heed on the explanation submitted by the petitioner dated 11.6.2013 before cancelling the license nor the petitioner was extended any opportunity to defend himself before cancellation of the fair price shop and as such 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 her submissions, she 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)."
Per contra, learned Standing Counsel submit that on the basis of enquiry report, the order impugned has been passed cancelling the license of the petitioner and the appellate authority after considering the entire evidence and record of the case, dismissed the appeal of the petitioner as such no interference is required in the orders impugned and the writ petition is liable to be dismissed.
Heard rival submissions and perused the record. The above said factual aspect has not been disputed by learned Standing Counsel. So far as other issues are concerned, the same become secondary once the categorical stand taken by the petitioner that there was much more cardholders are attached. In case few persons had any grievance regarding the distribution, in such situation, the petitioner solely cannot be blamed for the same and in most arbitrary manner, authorities have proceeded to pass the order impugned without considering the said aspect of the matter. So far as other allegations are concerned, the same are not of such nature, whereby cancellation order could be passed. Learned counsel for the petitioner in support of her submissions has placed reliance on Clause 2 (i) of the Government Order dated 29.7.2004, which for ready reference is reproduced as under:-
"mfpr nj dh nqdku dk fuyEcu ek= fdlh O;fDr dh f'kdk;r ds vk/kkj ij ugha fd;k tk;A ;fn fdlh nqdkunkj ds fo:) fdlh lzksr ls f'kdk;r izkIr gksrh gS rks igys mldh izkjfEHkd tkap djk;h tk;A ;fn izkjfEHkd tkap esa nqdkunkj ds fo:) ,slh xEHkhj vfu;ferrka, izFke n`"V;k fl) gks jgh gSas ftuds vk/kkj ij nqdkunkj dh nqdku fujLr gksus dh lEHkkouk gks rHkh nqdku dks fuyfEcr fd;k tk; vkSj lkFk gh lkFk nqdkunkj dks dkj.k crkvks uksfVl tkjh fd;k tk; fd mldh nqdku D;kas u fujLr dj nh tk;A ;fn izkjfEHkd tkap eas ik;k tk; fd vfu;ferrk bruh xEHkhj ugha gS fd nqdku ds fujLrhdj.k dh lEHkkouk gks rks dsoy dkj.k crkvks uksfVl tkjh fd;k tk;A fuyEcu vkns'k@dkj.k crkvks uksfVl ,d ^Lihfdax vkMZj^ gksuk pkfg, rFkk mleas izkjfEHkd tkap eas ik;h x;h mu lHkh vfu;ferrkvkas dk fooj.k gkuks pkfg, ftudk mRrj nqdkunkj ls vif{krs gSA"
It is contended that the petitioner kept on lifting the quota of essential commodities 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 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.
Admittedly, in the present matter, on certain complaint, the enquiry was conducted and the report was submitted. Finally, the authority concerned has cancelled the fair price shop licence of the petitioner without considering the objections filed by the petitioner and at no point of time, the Authority has adhered the procedure prescribed as per the Government Order dated 29.07.2004, wherein, full fledged mechanism has been provided therein for initiation of an inquiry and finalization of the proceeding.
In view of the above, this Court is of the considered opinion that 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. The license of the petitioner be restored forthwith and the authority concerned is directed to ensure that the petitioner may be permitted to lift the quota from the next month.
Order Date :- 26.2.2019 A.K.Srivastava