Court No. - 10
Case :- WRIT - C No. - 72372 of 2011 Petitioner :- Satya Prakash Respondent :- State Of U.P. Thru Secy. And Others Counsel for Petitioner :- Jyotish Awasthi,Prabhakar Dubey Counsel for Respondent :- C.S.C.,Sanjay Mishra
Hon'ble Mahesh Chandra Tripathi,J.
Heard learned counsel for the petitioner and Shri Sanjay Kumar Singh, learned Standing Counsel for the State respondents.
The petitioner, who was a licensee of fair price shop, is assailing the validity of order impugned dated 16.5.2011 passed by the third respondent, Sub Divisional Officer, Tehsil Etawah, District Etawah, whereby the license of fair price shop of petitioner has been cancelled, as well as the order dated 14.11.2011 passed by the second respondent, Commissioner, Kanpur Division, Kanpur, whereby, the appeal preferred by the petitioner has been dismissed.
It appears that the petitioner was fair price shop dealer of Gram Panchayat Pilkhar, Tehsil Etawah and he was continuously distributing the essential commodities at the rate fixed by Food and Civil Supply Department among valid card holders. On the complaint made by some persons of the village in question, the fair price shop of the petitioner was suspended on 03.5.2011 and a show cause notice was issued to the petitioner to which the petitioner submitted a detailed reply on 11.5.2011. Finally, the Sub Divisional Officer, Sadar, District Etawah vide order dated 16.5.2011 had cancelled the petitioner's license and the same has been approved by the Appellate Authority vide order dated 14.11.2011.
Learned counsel for the petitioner precisely submits that the petitioner was distributing the essential commodities fairly and according to Government order and fixed price. The false complaint was made before the authority concerned and consequently, his fair price shop licence was suspended on 3.5.2011. The petitioner submitted detailed reply to the show cause notice on 11.5.2011. All the complainants except few submitted detailed affidavits stating that they do not have any grievance/complaint against the petitioner and their forged signatures were made on the complaint. An ex-parte enquiry was conducted by the Supply Inspector and the petitioner was not given the copy of the enquiry report. The Sub Divisional Magistrate has not considered the objection/reply of the petitioner as well as the affidavits filed by the villagers/cardholders and passed the impugned order dated 16.5.2011 whereby licence of his fair price shop has been cancelled. The said order was assailed by the petitioner by preferring an appeal before the Commissioner of the Division and the appeal was also dismissed on 14.11.2011.
Learned counsel for the petitioner also submits that the entire action so initiated against the petitioner, on the complaint of some persons, is in the teeth of dictum of Full Bench judgement of this Court in Puran Singh vs. State of U.P. and others 2010 (3) ADJ 659 (FB), which has 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. He submits that at no point of time, the inquiry has ever been conducted in the matter and merely on vague and evasive complaint of certain persons, impugned order has been passed and as such, both the orders impugned cannot sustain and are liable to be set aside. In support of his submission, he has also placed reliance on the judgement of this Court dated 28.5.2012 passed in Writ C No.19070 of 2012 (Dharmendra Singh vs. State of UP through Secretary and others).
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 in most cursory manner, the petitioner has responded the show cause notice and as such, the Authority, on the spot, on the basis of allegations so levelled against the petitioner, has proceeded to cancel the fair price shop license of the petitioner on 16.5.2011 and the same has also been approved by the Appellate Authority on 14.11.2011. 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 the complaint moved by some persons of the village in question, the fair price shop licence of the petitioner was suspended on 3.5.2011. The petitioner submitted detailed reply to the show cause notice on 11.5.2011 and all the complainants, except few submitted detailed affidavits stating that they do not have any grievance/complaint against the petitioner and their forged signatures were made on the complaint. In the present matter, an ex-parte enquiry was conducted and the petitioner was not given the copy of the enquiry report. Finally, the Sub Divisional Officer concerned vide his order dated 16.5.2011 has cancelled the fair price shop licence of the petitioner without considering the objections filed by the petitioner and the affidavits of the complainant/card holders and the same has been affirmed by the Commissioner of the Division on 14.11.2011. 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. The said view has also been affirmed by this Court in Smt. Santara Devi vs. State of U.P. and others 2016 (2) ADJ.
The present writ petition was filed in the year 2011 and during the pendency of the aforesaid writ petition, the sole petitioner died on 7.6.2013, leaving behind his widow and three sons as legal heirs. The heirs of the petitioner moved a substitution application in the year 2013, which was allowed by this Court on 10.2.2014 and his heirs have been brought on record.
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.
In the peculiar facts and circumstances the heirs of the petitioner are given liberty to move an appropriate application for settling the fair price shop in their favour and the Authorities concerned will pass appropriate order in accordance with law but certainly after according ample opportunity of hearing to the heirs of the petitioner. The writ petition stands allowed.
Order Date :- 30.1.2019 RKP