Court No. - 26
Case :- WRIT - C No. - 11342 of 2018 Petitioner :- Shakira Begum Alias Sakra Begum Respondent :- State Of U.P. And 3 Ors.
Counsel for Petitioner :- Indra Mohan Singh,Manju Rani Chauhan Counsel for Respondent :- C.S.C.,Nishant Dwivedi
Hon'ble Mrs. Sangeeta Chandra,J.
(Oral)
1. This writ petition has been filed by the petitioner challenging the order of cancellation passed by the Licensing Authority dated 16th of February, 2018.
2. The counsel for Caveator, Mr. Nishant Dwivedi, says that against such an order of cancellation the petitioner has a statutory remedy of filing an Appeal. However, in view of the order proposed to be passed by this Court in this writ petition in the facts and circumstances of the case, this Court does not think it appropriate to relegate the petitioner to the statutory remedy available under Paragraph - 13 (1) of the U.P. Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016.
3. The counsel for petitioner submits that initially a suspension order was passed against the petitioner due to recovery of a tractor trolley on 06.06.2017 near a Petrol Pump on Jalesar Road loaded with 80 bags of wheat. On inquiry from the driver it came out that the wheat belonged to the brother-in-law of the petitioner. On physical verification of the shop in absence of the petitioner eight bags of wheat were found in excess of the quota and the stock of rice was found to be appropriate.
4. The petitioner was issued a show cause notice. But the petitioner fell seriously ill and moved an Application on 23.12.2017 along with medical certificate for grant of time to submit her explanation. On this Application the Sub Divisional Magistrate directed the Supply Inspector concerned to submit his comments. Again, the petitioner moved another Application on 27.01.2018 praying for some more time along with a certificate of a Hospital saying that she was admitted in ICU in a critical condition. This Application for grant of more time to submit her explanation was not considered and the order impugned has been passed.
5. From a perusal of the order impugned it is evident that the Licensing Authority has mentioned that after suspension of the fair price shop a show cause notice was issued to the petitioner on 08.12.2017, but the petitioner did not submit any reply till 02.02.2018 and therefore, it is assumed that the petitioner had nothing to say in the matter and the her fair price shop licence has been cancelled.
6. The learned counsel for the petitioner submits that in similar circumstances a Division Bench of this Court in writ - c No. 13563 of 2011: Ashmohammad versus State of U.P. and others decided 11.03.2011 has set aside the cancellation order directing the petitioner to file a representation/explanation which was to be considered by the Licensing Authority in accordance with law. A copy of the judgment and order dated 11.03.2011 passed by the Division Bench has been produced before this Court. A copy of another judgment rendered in writ - c No. 46097 of 2016: Lal Bahadur Gupta Versus State of U.P. and 3 others by a Coordinate Bench of this Court on 23.09.2016 has been placed before this Court.
7. Having considered the submissions of the learned counsel for petitioner and on having carefully perused the impugned order of cancellation, this Court finds no mention therein of the Application for grant of time submitted by the petitioner before the Licensing Authority along with medical certificate. Although there is a mention that from the inquiry report submitted by the then Supply Inspector that on 08.06.2017 statements of villagers of Gram Panchayat Maksoodpur and Sakara, Development Block - Awagarh had been recorded, who complained of irregularities in distribution of scheduled commodities, but independent application of mind to the alleged irregularities in distribution of scheduled commodities has also not been made.
8. Accordingly, the impugned order dated 16th of February, 2018 is set aside. The matter is remanded to the Licensing Authority to issue a show cause notice to the petitioner along with a copy of the inquiry report dated 08.06.2017 within one week from the date a certified copy of this order is produced before him. The petitioner shall submit her reply within fifteen days of the receipt of such show cause notice along with documentary evidence including all Registers and Distribution Certificates in original. The Licensing Authority shall consider all the documentary evidence along with explanation submitted by the petitioner and compare them with the entries in the ration cards of the complainants and pass appropriate, reasoned and speaking order within a period of four weeks thereafter.
9. The writ petition is partly allowed to this extent.
Order Date :- 28.3.2018 LBY