Heard learned counsel for petitioner as well as learned standing counsel and perused the records.
The writ petition has been filed challenging the order dated 16.7.2016 mainly on the ground that the order impugned has been passed at the dictates of the District Magistrate, Hardoi, without proper application of mind. It is also contended that the opposite party no. 3, Sub Divisional Magistrate has no power or authority to recall/review its earlier final order.
Learned standing counsel was directed to seek instructions.
With the consent of parties' counsel, the matter is being decided finally without calling for the counter affidavit as it involves trivial question of law.
Learned counsel for petitioner submits that by the impugned order dated 16.7.2016 the license of fair price shop of petitioner has been cancelled. It is submitted that on the complaint of Smt. Somwati an enquiry was done by the Regional Food Inspector on 14.4.2016 in which certain alleged irregularities were found and the license of fair price shop of petitioner was suspended vide order dated 16.4.2016. On the basis of the enquiry report, a notice was issued to petitioner to which he had submitted his reply/explanation vide letter dated 30.5.2016. The opposite party no. 3, Sub Divisional Magistrate considering the entire material on record including the explanation submitted by the petitioner had taken a final decision dated 07.06.2016 to the effect that the security amount deposited by the petitioner at the time of grant of license shall be confiscated and penalty of Rs. 5,000/- with a warning shall be imposed. The license of fair price shop of petitioner was restored. It was thereafter that one person, namely, Narpati son of Paragi submitted application dated 21.6.2016 before the District Magistrate, Hardoi on which the District Magistrate vide order dated 05.07.2016 had issued direction to the opposite party no. 3, Sub Divisional Magistrate to recall his earlier order as the allegations made against the petitioner are of very serious nature and there are sufficient grounds to cancel his license of fair price shop. It was on these dictates of the District Magistrate that the opposite party no. 3, Sub Divisional Magistrate vide impugned order dated 16.7.2016 has recalled its earlier order dated 07.06.2016 and provided that license of fair price shop of petitioner shall remain suspended.
It is contended by learned counsel for petitioner that the opposite party no. 3 has no such power to review/recall its earlier final order dated 07.06.2016. Moreover, the impugned order has been passed without application of mind as it has been passed on the dictates of the District Magistrate.
Learned standing counsel, on the basis of instructions, submits that the District Magistrate was of the opinion that the allegations made against the petitioner were of serious nature. There were sufficient grounds for cancellation of fair price shop license and, therefore, on the complaint received by him had directed the opposite party no. 3, Sub Divisional Magistrate to reconsider his decision dated 07.06.2016 and thereafter the opposite party no. 3 has passed the impugned order.
It is also submitted that pursuant to the impugned order an enquiry has been conducted by the Regional Food Officer and report has been submitted in which, prima facie, petitioner has been found guilty of certain serious irregularities in the distribution of essential commodities. Considering the said report a charge-sheet along with notice has been issued to petitioner and the reply of the petitioner is still awaited. No final order has been passed so far.
The short question involved in the writ petition is as to whether the Sub Divisional Magistrate has power or authority to review/recall its order dated 07.06.2016 which had attained finality more-so when the impugned order has been passed without application of independent mind by the competent authority.
The perusal of the order impugned indicates that the District Magistrate vide letter dated 05.07.2016 had issued direction to the opposite party no. 3 to reconsider its decision dated 07.06.2016 as the District Magistrate was of the opinion that there were sufficient grounds to cancel the license of fair price shop of petitioner as the allegations made against the petitioner are of serious nature and his agreement is liable to be cancelled. It was pursuant to the aforesaid direction of the District Magistrate that the order impugned has been passed.
It is to be noted that the competent authority for the purpose of grant of fair price shop license and its suspension/cancellation is the Sub Divisional Magistrate concerned and he is the final authority in this regard. The opposite party no. 3, Sub Divisional Magistrate, Sadar, District Hardoi had taken a final decision dated 07.06.2016 whereby he had imposed certain penalty and had confiscated the security amount deposited by the petitioner and had restored the fair price shop license of the petitioner. The Sub Divisional Magistrate, Sadar, Hardoi after passing of the final order was not empowered to review/recall its order as there is no such provision under the relevant Rules and the Government Orders. Once the Sub Divisional Magistrate had passed the final order, he had exhausted his powers and no review/recall was permissible.
Moreover, it is also to be noted that the order impugned has been passed at the dictates of the District Magistrate and has not been passed by application of independent mind of the concerning competent authority, as such, it is not sustainable in the eyes of law.
It is needless to observe that in case the District Magistrate was of the opinion that there are serious allegations against the sitting fair price shop licnesee i.e., petitioner and they have not been considered, he being overall incharge of the district was fully empowered to forward his opinion as well as the material on the basis of which he has made such opinion to the competent authority to initiate fresh proceedings against the licensee, however, he could not have issued direction to review/recall or reconsider the final order passed by the opposite party no. 3.
In view of above, I am of the considered opinion that the order impugned is not sustainable in the eyes of law. The order impugned dated 16.7.2016 is hereby set-aside with liberty to the concerning competent authority to initiate fresh proceedings, in case he is satisfied and pass appropriate orders in accordance with law, giving opportunity to petitioner, expeditiously.
[Ritu Raj Awasthi, J.] Order Date :- 3.8.2016 Santosh/-