Court No. - 10
Case :- WRIT - C No. - 18964 of 2016 Petitioner :- Tej Pal Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ajay Kumar Singh,Ashish Kumar Singh,Uttar Kumar Goswami Counsel for Respondent :- C.S.C.,Anil Kumar
Hon'ble Mahesh Chandra Tripathi,J.
Heard learned counsel for the petitioner and learned Standing Counsel for the State respondents.
The petitioner is before this Court assailing the orders dated 08.02.2016 and 10.03.2016 passed by Sub Divisional Magistrate, Sardhana, whereby, the fair price shop issued in favour of petitioner has been suspended and cancelled as well as order dated 06.04.2016 passed by Joint Commissioner (Food), Meerut Division, Meerut in Appeal no.12/2015 (Tej Pal Singh vs. State of U.P. and others).
It appears that on the basis of certain complaint and on the basis of alleged enquiry the license of the petitioner was suspended. Thereafter, an explanation from the petitioner was called and considering the same the order impugned for cancelling the license was passed and the same was approved by the appellate order. It is submitted by learned counsel for the petitioner that at the time of cancellation of the allotment of fair price shop license in favour of the petitioner, the explanation given by the petitioner was not considered, wherein, petitioner has clearly proceeded to mention that the complainants are not at all attached with the petitioner's fair price shop and all the charges have been properly explained and the documents were produced in support of his submission but in a haste and cryptic manner, solely on the basis of complaint made by the some villagers, in due influence of Pradhan of the village, the license of fair price shop issued in favour of petitioner has been cancelled and as such, the entire action taken by the respondents is 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) and the provisions of the same had not been followed in the present case, therefore, cancellation of allotment of fair price shop license in favour of the petitioner is illegal and against the principle of natural justice. 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 as the inquiry was conducted behind the back of the petitioner at no point of time, the report was provided to the petitioner. 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)."
Learned counsel for the petitioner has vehemently contended that the petitioner while furnishing reply to the show cause notice had also filed notarised affidavits of certain card holders specifically asserting on oath that forged and false complaints were made against the petitioner due to enmity. It is contended that at no point of time the said notarised affidavit had been considered by the licensing authority and in most arbitrary manner the finding of fact has been recorded, which is contrary to law.
It is contended that the petitioner kept on lifting the quota of essential commodities as well as kerosene oil since long 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. At no point of time he has violated any terms and conditions of the license nor committed any irregularity in distribution of essential commodities. Even the complaint, based on which the entire action has been taken does not at all goes to indicate that there was any indication of maldistribution of essential commodities and the same is came in light only after the enquiry was conducted and while cancelling the license in question, the explanation given by the petitioner with regard to the alleged malpractice in distribution of essential commodities have not been considered and the Appellate Authority has also proceeded to hold petitioner guilty of alleged misappropriation of 184 liters of kerosene oil, which was even neither the part of an inquiry nor any opportunity was extended on the said score before the cancellation order and the same clearly shows that no application of mind has been applied while passing the orders impugned and the same are liable to be set aside.
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 and the same has also been approved by the Appellate Authority. 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 authorities below and as such, no interference is required in the matter.
Heard rival submission and perused the record.
Admittedly, in the present matter, on certain complaint, the enquiry was conducted and the report was submitted. Thereafter a show cause notice was issued to the petitioner to which he had submitted his reply denying the allegations made against him and also denying the attachment of complainants as card holders to the fair price shop of petitioner. Finally, the authority concerned has cancelled the fair price shop licence of the petitioner without considering the objections filed by the petitioner and the affidavits of the card holders in favour of the petitioner and at no point of time, the Authority has properly 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.
Record in question also goes to show that six charges were levelled against the petitioner, wherein, the core issue is with regard to the distribution of kerosene oil. So far as the aforesaid issue is concerned, while passing the cancellation order, the Authority concerned has proceeded to record finding that in the month of November, 2015, 1600 liters of kerosene oil has been lifted by the petitioner and the same was distributed to the tune of 1108 on 11.11.2015 and 492 liters on 12.11.2015 and again on 20.11.2015, 1240 liters of kerosene oil has been lifted by the petitioner wherein on 20.11.2015 308 liters have been distributed and rest was distributed on 21.11.2015. Nothing has been brought on record to indicate deficiency in distribution of kerosene oil. Charge has also been levelled regarding non distribution of essential commodities to all the 440 cardholders, against which case has been set up by the petitioner that whoever has come forward, the essential commodities have been disbursed to him and at no point of time any ill distribution has taken place and the said fact has also been accepted by the respondent Authorities. So far as the other charges are concerned, the same are vague and evasive and it is also reflected from the record that while passing the order impugned, the Appellate Authority has also not applied its mind and in cyclostyled manner, repeated the grounds so mentioned by the Sub Divisional Magistrate concerned.
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. The writ petition stands allowed. 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 :- 19.12.2018 A. Pandey