RESERVED ON 30.01.2018 DELIVERED ON 27.07.2018 Case :- WRIT - C No. - 62253 of 2015 Petitioner :- Smt. Urmila Devi Respondent :- State Of U.P. & 3 Others Counsel for Petitioner :- Rajesh Kumar Counsel for Respondent :- C.S.C.
Hon'ble Mrs. Sangeeta Chandra,J.
1. This writ petition has been filed by the petitioner challenging the order dated 02.09.2015 passed by the Commissioner (Food), Varanasi Division, Varansi in Appeal No. 20 of 2014 as well as the order dated 16.05.2013 passed by the Sub Divisional Magistrate, Shakaldeeha, District Jaunpur.
2. The petitioner is a fair price shop licensee of village Inayatpur, Vikas Khand Dhanapur, Tehsil Sakaldeeha since long. On 19.09.2009 the local police recovered three quintals of sugar from the possession of one trolley man named Bhole son of Subedar who on arrest gave a statement that the said sugar belonged to the petitioner. On 20.09.2009 an inquiry was held in the village in which the petitioner was not associated and on the basis of the said inquiry a Case Crime No. 224 of 2009 under Section 3/7 of the Essential Commodities Act was registered against the petitioner and her husband at Police Station Dhina , District Chandauli.
3. In pursuance of the said first information report the fair price shop of the petitioner was also suspended on 22.09.2009 and attached to the shop of one Bihari Upadhyay. The petitioner challenged the first information report dated 20.09.2009 in Criminal Misc. Writ Petition No. 21622 of 2009 and this Court granted an interim order directing that the petitioner shall not be arrested till the submission of the police report under Section 173 (2) of Code of Criminal Procedure.
4. In the suspension order dated 22.09.2009 five charges were mentioned against the petitioner to the effect that the petitioner distributed the sugar on 15.09.2009 and 16.09.2009 and the remaining quota in her shop did not match the Stock Register and the entries made in the Distribution Register.
5. The petitioner submitted reply to the show cause notice, but the same was not considered and her licence was cancelled. The petitioner preferred an appeal which has also been summarily rejected.
6. The learned counsel for the petitioner while arguing the matter placed reliance upon several judgments of this Court to argue that the findings recorded by the Licensing Authority were without any basis and the petitioner should have been permitted to cross- examine the witnesses to establish the truth, otherwise the complaints made against her, at the time of inquiry made on 22.09.2009 in the village concerned.
7. I have gone through the impugned order passed by the Licensing Authority which refers to only 1.94 quintals of sugar shown as remaining in the stock on 17.09.2009. Whereas as per the Stock Register and the Distribution Register 4.64 quintals of sugar ought to have been left as remaining stock. The Licensing Authority had contacted several villagers whose names and ration card numbers have been mentioned in the impugned order, who had allegedly signed affidavits in favour of the petitioner saying that they had received their share of the sugar on 15.09.2009 and 16.09.2009 from the licensee. These villagers deposed in persons before the Licensing Authority later on that they had not given any such affidavits. Believing the such statements made by the villagers concerned, an assumption has been drawn by the Sub Divisional Magistrate that the petitioner had submitted false affidavits and has cancelled the fair price shop licence.
8. I have also perused the order passed by the Appellate Authority dated 02.09.2015. I find that the Deputy Commissioner (Food), Varanasi Region, Varanasi has merely mentioned the facts as recorded in the order of cancellation passed by the Licensing Authority in the first page of the appellate order and on the second page has mentioned the grounds taken in appeal but without analyzing the said grounds and referring to the correct factual aspects of the matter on the basis of the record allegedly summoned by him, he has again recorded the findings given by the Licensing Authority almost in the same language as used in the order of the cancellation by the Licensing Authority. There is a complete lack of diligence and evident non-application of mind on the part of the Deputy Commissioner (Food) which has resulted in the appeal being rejected summarily.
9. Having found the Appellate Authority had failed to exercise the discretion vested in it to reconsider all evidence, documentary or otherwise, produced by the petitioner in appeal, this Court is of the considered opinion that the appellate order has been passed irresponsibly and arbitrarily. The appellate order is set aside. The matter is remanded to the Appellate Authority to consider afresh after summoning the record from the Sub Divisional Magistrate, Sakaldeeha after taking into account all documentary evidence produced by the licensee in support of her case including the Stock Register, Distribution Register, certificate, if any, given by the Village Level Administrative Committee and the Supervisory Official in this case Gram Vikas Adhikari as per the requirements set out in the Government Order No. 11/490/29-121 SA/98 dated 4th of October, 2015.
10. This writ petition is partly allowed to this extent.
Order Date :- 27.7.2018 LBY