Court No. - 10
Case :- WRIT - C No. - 62538 of 2014 Petitioner :- Sompal Respondent :- Dy. Commissioner And 2 Others Counsel for Petitioner :- S.C. Pandey Counsel for Respondent :- C.S.C.,Avanish Kumar,Rajesh Yadav
Hon'ble Mahesh Chandra Tripathi,J.
Heard learned counsel for the petitioner, Shri S.P.S. Rathore, learned Standing Counsel for the State respondents and Shri Rajesh Yadav, Advocate appearing for Gaon Sabha.
The petitioner is before this Court assailing the order dated 01.07.2011 passed by second respondent by which his fair price shop license has been cancelled and also the order dated 24.09.2014 passed by second respondent dismissing the appeal in question.
It appears that petitioner's fair price shop license was placed under suspension on 12.05.2011. The petitioner has filed detailed reply/objection refuting the allegation and consequently, the same has been restored on 10.06.2011. It further appears that open meeting was convened by the gaon sabha on 24.06.2011 and resolution has been passed in the light of the Government Order dated 20.10.2001 against the petitioner. Immediately thereafter the license of the petitioner has been placed under suspension on 24.06.2011.
In this backdrop, learned counsel for the petitioner submits that on the basis of report submitted by the Committee of two members, the license in question has been cancelled. The said order of cancellation has been subjected to challenge before this Court by preferring Writ Petition no.35438/2011 (Sompal vs.State of U.P. and others) and the Division Bench of this Court vide order dated 07.07.2011 has intervened in the matter and accorded an interim order on the ground that without any opportunity of hearing or serving any chargesheet to the petitioner, the order of cancellation has been passed and the same is wholly arbitrary and against the principles of natural justice. He further submits that unfortunately vide order dated 29.01.2014, the said writ petition was dismissed on the ground of alternative forum provided under Clause 28(3) of the U.P. Scheduled Commodities (Distribution) Order 2004 and eventually, the appeal in question has also been rejected. In this backdrop, he submits that once the Division Bench of this Court has intervened in the matter on the basis of the fact that entire proceeding against the petitioner was ex-parte and at no point of time before cancelling the license in question any opportunity whatsoever has been extended to the petitioner and as such, the orders impugned cannot sustain being in teeth of the procedure laid down in the Government Order dated 29th July, 2004 and the U.P. Scheduled Commodities Distribution Order, 2004 (Distribution Order, 2004). The aforesaid Government Order dated 29th July, 2004 and the Distribution Order, 2004 came up for consideration before the Full Bench of this Court in Puran Singh v. State of U.P. & Ors., 2010 (3) ADJ 659 (FB) in which it is held that in case after suspension of the agreement to run fair price shop the authority decides to hold an enquiry for cancellation of the agreement, then that requires full fledged enquiry. Relevant para 35 of the said judgment is quoted as under:-
"35. Para 4 and 5 of the Government Order clearly permits fulfledged enquiry pursuant to the show cause notice for cancellation and then final decision in the matter. So far the order of suspension is concerned Government Order do not provide any appeal and at the same time there was no contemplation of signing an agreement as was made obligatory pursuant to Distribution Order of 2004."
It is contended that the judgment of Puran Singh (Supra) has also 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.
The said view has also been affirmed by this Court in Smt. Santara Devi vs. State of U.P. and others 2016 (2) ADJ.
Learned counsel for the petitioner has also contended that in the present matter at no point of time the procedure as has been contemplated in G.O. dated 29.7.2004 has ever been adhered. In support of his submissions, he has also placed reliance on the Division Bench judgment of this Court in Gulab Chandra Ram v. State of U.P. & Ors., 2009 (2) AWC 1066 as well as judgment in Mahendra Singh v. State of U.P. & Anr., 2016 (8) ADJ 732. Relevant para 13 of the judgment in Mahendra Singh (Supra) is quoted as under:-
"It is also well settled that an order which leads to civil consequences and have passed without opportunity must be passed in conformity with the principles of natural justice. Reference may be had in State of W.B. v.
Anwar Ali Sarkar, AIR 1952 SC 75; State of Orissa v Dr. (Miss) Binapani Dei, AIR 1967 SC 1269; Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405; Maneka Gandhi Vs. Union of India (1978)1 SCC 248 and D.K.Yadav Vs. J.M.A. Industries Ltd. Reported in 1993 ,SCC 259 Canara Bank vs. V.K.Awasthy (2005 (6) SCC 321), Bidhannagar (Salt Lake) Welfare Ass. vs. Central Valuation Broad and Others ((2007) 6 SCC 668) Devdutt vs. Union of India and others (2008(3) ESC 433(SC) and Suresh Singh vs. Board Of Revenue And 3 Ors. (2014 (5) ADJ 697)."
It is contended that since the interim protection has been provided to the petitioner vide order dated 07.07.2011, the petitioner kept on lifting the quota of essential commodities as well as kerosene oil from time to time and used to distribute the same to the valid card holders attached with the fair price shop of the petitioner with utmost sincerely and honesty. It is also contended that distribution of essential commodities as well as kerosene oil by the petitioner was being verified regularly and continuously by the authorities concerned from time to time and accordingly distribution certificates were also used to be issued in favour of the petitioner regularly. At no point of time he has violated any terms and conditions of the license nor committed any irregularity in distribution of essential commodities.
Per contra, learned Standing Counsel submits that it is true that interim order has been passed by this Court but finally the writ petition has been dismissed on the ground of alternative remedy and in pursuance thereof, the petitioner has filed the statutory appeal against the order of cancellation and the Appellate Authority in its turn has proceeded to negate the claim set up by the petitioner. 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 two occasions the suspension order has been passed. On the first occasion, the same has been restored but based on the resolution passed by the Gaon Sabha, the order of suspension has again been passed. Thereafter the order of cancellation has been passed. The same has been assailed before this Court and the Division Bench of this Court has passed an interim order in favour of petitioner on the ground that before passing the order impugned, no opportunity of hearing has been accorded to the petitioner and the same is hit by principles of natural justice as well as the relevant Government Orders. This is true that the said writ petition was dismissed on the ground of alternative remedy, even the appeal has also been dismissed but at no point of time, the said aspect has been disputed by the respondents, even while filing the counter affidavit, the said fact has not been negated by the respondents.
In view of the above, this Court is of the considered opinion that both the orders impugned cannot sustain in absence of proper opportunity of hearing and accordingly, both the orders impugned are set aside. The writ petition stands allowed. The Authorities are directed to ensure supply of the essential commodities to the petitioner's fair price shop for distribution forthwith. However, it is open for the Authorities concerned to hold a fresh inquiry in accordance with law and pass appropriate order but certainly after according ample opportunity of hearing to the petitioner also.
Order Date :- 27.2.2019 A. Pandey