Court No. - 10
Case :- WRIT - C No. - 61248 of 2017 Petitioner :- Smt. Ranno Devi Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ajeet Kumar Singh,Surya Pratap Singh Parmar Counsel for Respondent :- C.S.C.,Amresh Singh
Hon'ble Mahesh Chandra Tripathi,J.
Heard 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 31.5.2016 passed by the third respondent, Sub Divisional Magistrate, Dataganj, District Bareilly, by which he has cancelled the fair price shop licence of the petitioner as well as the order dated 28.11.2017 passed by the second respondent, Deputy Commissioner (Food), Bareilly Division, Bareilly whereby the appeal preferred by the petitioner has been dismissed.
Record in question reflects that the petitioner was running the fair price shop of Village Khukari, Nyay Panchayat Gadaha, Block Samarer, Tehsil Dataganj, District Badaun since the year 2011 and continuously distributing the essential commodities such as wheat, rice, sugar and kerosene oil etc. at the rates fixed by Food and Civil Supply Department among valid card holders. The licence of fair price shop of the petitioner was suspended by the third respondent on 31.5.2016 on the ground that the petitioner failed to deposit the advance amount of essential commodities/sugar for the month of May, 2016, which is against the conditions of the licence agreement and Para-5 of the Government order dated 15.4.2012. The petitioner submitted her explanation/reply on 22.5.2016 stating that she had fallen ill on 18th May, 2016 and was under treatment upto 21.5.2016. She also could not deposit the advance amount for supply of foodgrains for the month of May, 2016 on the next day i.e. 22.5.2016, which was Sunday and the petitioner deposited Rs.14,617/- on 23.5.2016 through e-Challan. Finally, the third respondent had proceded to cancel the fair price shop licence on 23.6.2016. The said order was assailed by the petitioner by preferring an appeal and the Appellate Authority has also dismissed the appeal on 28.11.2017.
Learned counsel for the petitioner submits that initially the fair price shop of the petitioner was suspended on 31.5.2016 on the ground that she failed to deposit the advance amount for lifting the essential commodities for the month of May, 2016 by the due date i.e. 22.5.2016, which was admittedly Sunday. The petitioner had deposited the advance amount on 23.5.2016. The authority was of the opinion that the said act of the petitioner was contrary to Paragraph-5 of the Government order dated 15.4.2012. He further makes submission that once the petitioner could not deposit the advance amount on 22.5.2016 as it was Sunday and immediately on the next date i.e. 23.5.2016, she deposited the advance amount, then in such situation there was no laxity on the part of the petitioner. Moreover, the authority while passing the cancellation order had proceeded to consider the complaint, which was allegedly made in the matter but at no point of time, any show cause notice was issued to the petitioner in this regard. However, the show cause notice was given only for violation of Paragraph-5 of the Government order dated 15.4.2012. It is submitted that the entire action is in violation of principle of natural justice and at no point of time any notice or opportunity of hearing was given to the petitioner giving reason for cancelling the licence of the petitioner. Even though the said ground was taken by the petitioner while preferring the appeal but the same has also not been accepted by the Appellate Authority. 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.
So far as factual and legal aspect of the matter is concerned, the same is undisputed by learned Standing Counsel.
In such situation the Court is of the considered opinion that once the authority was of the opinion that the act of the petitioner was contrary to Paragraph-2 of the Government order dated 15.4.2012 and meanwhile, certain complaint was also received by the licensing authority, then it was paramount responsibility of the licensing authority to issue a notice to the petitioner but no such effort was made by the authority and contrary to the show cause notice the authority had proceeded to reject the claim set up by the petitioner. 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 31.5.2016 and 28.11.2017 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