Court No. - 10
Case :- WRIT - C No. - 29963 of 2014 Petitioner :- Ramesh Chandra Dwivedi Respondent :- State Of U.P. And 2 Ors Counsel for Petitioner :- Ashesh Srivastav Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Rakesh Dubey, learned counsel for the petitioner and learned Standing Counsel for all the respondents.
By means of present writ petition the petitioner has prayed for quashing the order impugned dated 27.8.2011 passed by the third respondent, Sub Divisional Magistrate, Bhoganipur, District Ramabai Nagar (Kanpur Dehat) by which he has cancelled the fair price shop licence of the petitioner as well as the order dated 1.6.2013 passed by the second respondent, Commissioner, Kanpur Division, Kanpur whereby the appeal preferred by the petitioner has been dismissed.
Learned counsel for the petitioner submits that the entire case has been set up against the petitioner on the basis of lodging of first information report dated 15.2.2011 against the petitioner and the same was registered as Case Crime No.40 of 2011 under Section 3/7 of Essential Commodities Act at Police Station Musanagar, Ramabai Nagar. Thereafter, the fair price shop licence of the petitioner was suspended on 18.3.2011 and a show cause notice was issued to the petitioner on 10.5.2011 to which he had submitted his reply alongwith relevant evidence on 27.5.2011 denying the allegations made against him. In the aforesaid criminal proceeding the petitioner has already been enlarged on bail by the Additional District and Sessions Judge, Court No.1, Ramabai Nagar on 15.7.2011. Finally, the Sub Divisional Officer has cancelled the fair price shop licence on 27.8.2011 and the same has also been approved by the Appellate Authority on 1.6.2013. The petitioner was not indulged in black marketing or mal- distribution of essential commodities. Even the stock has been verified by the Regional Food Officer and the Supply Officer, Bhoganipur on 10.6.2011. The entire action so taken by the authorities is in teeth of the Government Order dated 29.7.2004 and the Full Bench of this Court in Puran Singh Vs. State of U.P. and others reported in 2010 (2) UPLBEC 947.
On the other hand, learned Standing Counsel has vehemently opposed the writ petition precisely on the ground that on the basis of allegations so levelled against the petitioner, the licensing authority had proceeded to cancel the fair price shop licence of the petitioner on 27.8.2011 and the same has also been approved by the Appellate Authority on 1.6.2013. 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 the writ petition is liable to be dismissed.
The Court has proceeded to examine the record in question and finds that the fair price shop licence in question was suspended on 18.3.2011 on the ground of lodging of first information report under Section 3/7 of Essential Commodities Act against the petitioner. The show cause notice was issued to him on 10.5.2011 to which he had submitted his reply on 27.5.2011. In the aforesaid criminal proceeding the petitioner has already been enlarged on bail on 15.7.2011. Finally, the Sub Divisional Officer has cancelled the fair price shop licence on 27.8.2011 and the same has also been approved by the Appellate Authority on 1.6.2013. Thereafter the proceeding initiated against the petitioner under Section 6 (A) of Essential Commodities Act was set aside by the Collector, Kanpur Dehat vide his order dated 1.1.2018 with observation that the confiscated items belong to the brother of the petitioner namely Umesh Chandra Dwivedi, who sold the same to Vijay Tiwari on 13.3.2011 and on the physical verification at no point of time any shortfall of the essential commodities was found on the spot and as such, the confiscated items were released in favour of his brother.
The cancellation order has been passed on the basis of a fact finding inquiry without directing for holding a full fledged inquiry as contemplated by the Full Bench of this Court in Puran Singh Vs. State of U.P. and others reported in 2010 (2) UPLBEC 947. The procedure for holding an inquiry for cancelling the license of the fair price shop has been provided in the Government Order dated 29.07.2004 read with U.P. Essential Commodities Distribution Order 2004. The aforesaid Government Order and Distribution Order came up for consideration before the Full Bench of this Court in case of Puran Singh (Supra). The Court considering para 4 and 5 of the Government Order dated 29.07.2004 held that it contemplates a full-fledged enquiry pursuant to the show cause notice for cancellation and then a final decision in the matter. The aforesaid decision was followed by the learned Single Judge in his judgement and order dated 28.11.2014 passed in Writ-C No. 12737 of 2013 and referring to paragraph 35 of the Full Bench decision in Puran Singh's case, His Lordship observed that a full- fledged enquiry is necessary before cancelling the agreement and it would require service of the charges, along with 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.
In Thakur Prasad vs. State of UP and others reported in 2017 (35) LCD 128 it has been held as under:
"10. A Full Bench of this Court in the case of Puran Singh Vs. State of U.P. and others (2010) 2 UPLBEC 947 has held that in case, after suspension of the agreement to run fair price shop, the authority decides to hold an inquiry for cancellation of the agreement then that requires full fledged inquiry, which, in view of the law laid down by this Court in Ashok Kumar Tiwari Vs. State of U.P. and others (Writ-C No. 12737 of 2013, decided on 28.11.2014) and Smt. Santara Devi vs. State of UP and others (2016 (2) ADJ 70), means the service of the charge-sheet, inquiry report, statements of the cardholders/complainants, copy of the complaints and other supporting materials which are to be relied upon in support of the charges levelled against the fair price shop agent.
11. In view of the fact that neither the copy of the charge-sheet nor inquiry report was supplied to the petitioner meaning thereby there was no inquiry as intended in the government order and interpreted by this Court in the case of Puran Singh (supra).
12. In view of foregoing discussions, I am of the opinion that in absence of the formal inquiry as desired, the impugned orders dated 11.10.2013 passed by the Deputy Commissioner (Food) Varanasi Region Varanasi as well as order dated 31.12.2012 passed by the Sub-Divisional Officer Shahganj, District Jaunpur cannot be sustained in the eyes of law."
In view of above fact and to my view, the action taken by the authority concerned is not in accordance with law, hence, orders impugned dated 27.8.2011 and 1.6.2013 are liable to be quashed.
In view of the aforesaid factual and legal position, the impugned orders cannot be sustained and the same are hereby quashed. 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.
In the result, the writ petition succeeds and is allowed.
Order Date :- 27.2.2019 RKP