Court No. - 10
Case :- WRIT - C No. - 12640 of 2014 Petitioner :- Ram Dulare Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Jyotish Awasthi Counsel for Respondent :- C.S.C.,Raj Kumar Mishra,Rama Nand Gupta
Hon'ble Mahesh Chandra Tripathi,J.
Heard Sri Jyotish Awasthi, learned counsel for petitioner and Learned Standing Counsel for the State-respondent.
Present writ petition has been preferred for issuing a writ, order or direction in the nature certiorari quashing the impugned order dated 18.12.2012 passed by Sub-Divisional Officer, Tehsil Bharthana, District- Etawah (U.P.) and the appellate order dated 06.11.2013 passed by Deputy Commissioner (Food & supply), Kanpur Mandal, Kanpur Nagar.
It appears from the record in question that petitioner was a fair price shopkeeper of village- Pilkhana, Block Mehewa, Tehsil- Bharthana, District- Etawah since 25 years. It is being claimed that certain complaints were made against the petitioner regarding the non distribution of the essential commodities wherein cognizance was taken on the said complaint and the Supply Inspector has submitted his report on 23.08.2012. In response thereof, a show-cause notice was issued to the petitioner on 01.09.2012 asking him to respond the same within reasonable time. The same was followed by the reminder dated 18.09.2012. Consequently, the license of the petitioner was placed under suspension by order dated 09.10.2012. Thereafter the petitioner has filed his reply on 11.10.2012 denying all the allegations levelled against him and finally by the order impugned, the license in question was cancelled and the same was approved by the Appellate Authority.
Learned counsel for the petitioner submits that the entire action so taken by the respondents is in teeth of the procedure provided in Government Order no.1421/26.06.2003 and Government Order dated 23.04.2003, wherein, it is provided that in case any complaint is being made, the Authority may proceed only if the said complaint is supported by an affidavit and material evidence but in the present matter, at no point of time, complaint was made in consonance with the aforesaid Government Orders. On the strength of averment mentioned in paragraph 8 of the writ petition, it is also sought to be contended that neither any show cause notice nor copy of the complaint, which has been made by Sarvesh Kumar, had ever been provided to the petitioner while license of the petitioner has been placed under suspension and after passing of the suspension order, only the copy of the show cause notice was provided to the petitioner and the same has been duly replied by him and as such, the entire action was 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. 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 judgement 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 judgement 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 judgement 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 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 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.
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 the show cause notice was served upon the petitioner on 03.09.2012 and thereafter another notice has also been given on 18.09.2012 but reason best known to the petitioner, at no point of time, any proper response has been filed in the matter and as such, the Authority had no option except to proceed in the matter and consequently, on the basis of allegations so levelled against the petitioner, the Authority 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.
Admittedly, in the present matter, on certain complaint, the enquiry was conducted and the report was submitted and thereafter the suspension order has been passed without providing even a copy of the enquiry as well as the complaint made against the petitioner. This is also admitted situation that the aforesaid complaints were not supported by any affidavit and as such, the same should not at all be entertained by the Authority concerned noti being in consonance with the Government Order no.1421/26.06.2003 and Government Order dated 23.04.2003. Record in question also reflect that relevant certificates have been issued for distribution of essential commodities by the Authorities concerned under clause 21 (6) of U.P.
Scheduled Commodities Distribution Order 2004, which provides that monthly allocation of food grains, sugar, kerosene and other scheduled commodities shall be supplied to the agent only and that only on receipt of a certificate, issued by the concerning Vigilance Committee, Administrative Committee duly countersigned by the supply or Senior Supply Inspector or Village Development Officer of the area clearly mentioning that prior month's allocations have been distributed by the agent in accordance with rules. In clause 21(8) of the said Order, it is provided that the Competent Authority and Food Officer shall check the diversion, substitution or adulteration of Scheduled Commodities and in such a situation, once the certificate has been issued by the competent authority, then there is no reason or occasion to disbelieve the same and take such punitive action resulting in cancellation of fair price shop in question on the basis of vague and evasive allegations levelled by the complainant without any proper affidavit. Even the reply/objection so filed by the petitioner has not been discussed in the operative portion of the order impugned and as such, the same cannot be appreciated by any means.
In view of the above, this Court is of the considered opinion that both the orders impugned cannot sustain and accordingly, the same 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 :- 26.2.2019 A. Pandey/Sweety