Court No. - 10
Case :- WRIT - C No. - 20897 of 2018 Petitioner :- Usha Devi Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Nandini Mishra Counsel for Respondent :- C.S.C.,Ravindra Nath Yadav
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Ashish Kumar Pandey, Advocate holding brief of Ms. Nandini Mishra, learned counsel for the petitioner and learned Standing Counsel for the State respondents.
The petitioner is before this Court assailing the order dated 18.07.2017 passed by Sub Divisional Magistrate, Tehsil Shahganj, District Jaunpur by which his fair price shop license has been cancelled and also the order dated 16.03.2018 passed by Deputy Commissioner (Food), Varanasi Region, Varanasi dismissing the appeal in question.
It appears that on the basis of certain complaint and on the basis of alleged enquiry, the license of the petitioner was placed under suspension. Thereafter, an explanation from the petitioner was called and considering the same, the order impugned cancelling the license was passed and the same was approved by the appellate order. It is submitted by learned counsel for the petitioner that in the present matter a show cause notice has been served upon the petitioner on 02.01.2017, wherein, it is alleged by the Authorities that in the said inquiry, the statements of about 44 cardholders/villagers were recorded in which most of the card holders expressed their dissatisfaction with the distribution system of the petitioner and they also reported about the irregularities committed by the petitioner. The same has been duly replied by the petitioner on 08.01.2017 denying all the allegations. He further submits that in the present matter, again an inquiry was conducted in the matter by the Supply Inspector on 24.04.2017 and the report has been submitted, wherein, after going through the entire facts and circumstances and after taking necessary statements, it has been held that petitioner has not committed any irregularity and illegality in the distribution of food grains or essential commodities and there is no proper ground for suspension of the license of the Fair price shop. Thereafter again the District Magistrate concerned has again asked the Joint Committee headed by Block Development Officer to go through the entire record and submit its report. In pursuance thereof, the Joint Committee has submitted its report on 29.06.2017 and based on the same, finally the order of cancellation of fair price shop license has been passed. In this backdrop, he submits that on three occasions inquiry was conducted in the matter and in response to the first enquiry, the petitioner has submitted his explanation denying all the allegations. He further submits that thereafter on two occasions, the enquiry was conducted but at no point of time, the petitioner has been asked to submit his explanation or any opportunity of hearing has been provided petitioner 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. 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 denying any complaint against the petitioner's fair price shop and 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 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 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 after conducting the proper enquiry 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 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 three occasions enquiry was conducted. This is also admitted situation that only after conducting the first enquiry, the petitioner has been asked to submit his explanation. Bare perusal of order of cancellation goes to show that thereafter again an enquiry was conducted and report was submitted in favour of the petitioner to the effect that no grave illegality has been caused by the petitioner while distributing the essential commodities, which would result in cancellation of fair price shop. It is also reflected from the record that again the District Magistrate has asked the District Supply Officer to enquire into the matter and in pursuance thereof the report was submitted on 29.06.2017, based on which the order impugned has been passed. In the present case admittedly while conducting the enquiry on the third occasion, the petitioner was not accorded with any opportunity to participate in the same and at no point of time, the version of petitioner has been recorded. Even the objection filed by the petitioner alongwith affidavit of certain villagers has not been dealt with in meticulous way and as such, the entire action is in violation of principles of natural justice as well as in violation of norms prescribed in Government Order dated 29.07.2004, wherein, full fledged mechanism has been provided therein for initiation of an inquiry and finalization of the proceeding.
In view of the above, this Court is of the considered opinion that both the orders impugned cannot sustain in the light of procedure prescribed in Government Order dated 29.07.2004 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 :- 25.2.2019 A. Pandey