Court No. - 10
Case :- WRIT - C No. - 41937 of 2019
Petitioner :- Shaila Devi
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Vishal Tandon
Counsel for Respondent :- C.S.C.,Tariq Maqbool Khan
Hon'ble Mrs. Sangeeta Chandra,J.
1. Heard the learned counsel for the petitioner and the learned Standing Counsel who appears on behalf of opposite party no.1 to 4.
2. The petitioner is aggrieved by the order dated 22.08.2017 passed by the sub-Divisional Officer, Tehsil- Kasya, District Kushinagar by which the fair-price shop license of the petitioner has been canceled and also the order dated 20.11.2019 passed by the Additional Commissioner (Food and Civil Supplies), Gorakhpur Division, Gorakhpur rejecting the appeal.
3. It has been submitted by the learned counsel for the petitioner that on the basis of complaints made against distribution of Essential Commodities by the petitioner, a preliminary enquiry was ordered by the sub-Divisional Officer. The area Rationing Officer conducted no enquiry as alleged on 22.06.2017. He allegedly recorded statement of only 29 villagers who were aggrieved against the distribution of the petitioner. On the basis of the said preliminary enquiry, the sub-Divisional Officer can suspended the fair price shop license of the petitioner on 11.07.2017 and issued a show-cause-notice to her. The petitioner having been served the show-cause notice asked for time to submit a reply by her application dated 24.07.2017. She was not communicated any extension of time. Later on, it was revealed that another reminder was issued to her on 03.08.2017 giving her time till 18.08.2017. It has been submitted that the petitioner had already filed her reply along with the observer certificate issued in her favor regarding satisfactory distribution of essential commodities. The sub-Divisional Officer proceeded to cancel the license of the petitioner only on the basis of the charges mentioned in the preliminary enquiry report. He did not apply his mind by making an observation that since the petitioner had been given ample opportunity of being heard and did not file any explanation, it shall be presumed that she had nothing more to say. The petitioner filed an appeal which appeal has also been rejected in a summary manner by the appellate court with the observation only to the effect that the petitioner having been issued show cause notice and a reminder failed to reply to the same.
4. It has been submitted on the basis of a judgment rendered by coordinate bench in Lal Bahadur Gupt vs. State of U.P. and three other (2016) 10 ADJ page 378, that the licensing authority acts as a quasi judicial authority and even in the absence of her reply, the sub-Divisional Officer was required to record a finding on the merits of the case. The sub-Divisional Officer did not apply his mind to the charges leveled against the petitioner and he only presumed the charges to be true on account of the fact that the petitioner had not filed a reply. This Court has carefully perused the judgment rendered by coordinate bench. It has place reliance upon observations made by a Division Bench of this Court in Ashmohammad vs. State of U.P. and others in Writ-C No. 13563 of 2011 where it was held that even in absence of a reply, the sub-Divisional Officer was required to record a finding on merit of the charges. In this case, the impugned order passed by the sub-Divisional Officer does not record any findings on the merits of the charges.
5. The learned Standing Counsel has pointed out the memo of the appeal filed by the petitioner before the Divisional Commissioner. It has been submitted that in the memo of the appeal, there is no ground taken that the petitioner had already filed her reply along with observer certificate to show that she was distributing the essential commodities in a fair manner to all concerned. This Court has perused the appeal, no doubt the petitioner has not taken any such ground that she had already filed a reply which was not considered. The memo of the appeal contains only formal grounds as are usually taken, in such appeal by licensees before the appellate authority.
6. The petitioner has filed voluminous documents in this petition to show that she was distributing the essential commodities fairly and that the Gram-Pradhan concerned was inimical to her and that out of 400 card-holders attached to her shop, only 29 had complaints.
7. Since the appeal is a continuation of the original proceedings, the petitioner is directed to produce all evidence in her favor before the appellate authority, the Divisional Commissioner who shall considere the same along with the comments, if any, submitted by the S.D.M. concerned and pass a fresh order in the matter, till a fresh order is passed by the Additional Commissioner the order dated 20.11.2019 shall be kept in abeyance.
8. The writ petition stands disposed of.
Order Date :- 19.12.2019
C. MANI