Court No. - 10
Case :- WRIT - C No. - 59389 of 2013 Petitioner :- Vishamvar Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- R.K. Pandey,Suneel Kumar,Vijay Pratap Counsel for Respondent :- C.S.C.,Ram Singh Yadav,S.R.Yadav
Hon'ble Mahesh Chandra Tripathi,J.
Heard learned counsel for the petitioner and Shri Devesh Vikram, learned Standing Counsel for the State respondents.
The petitioner is assailing the validity of order impugned dated 11.9.2012 passed by the third respondent, Sub Divisional Magistrate, Tehsil Sadar, District Rampur, whereby, the fair price shop licence of petitioner has been cancelled as well as the order dated 18.7.2013 passed by the second respondent, Commissioner, Moradabad Division, Moradabad, whereby, the appeal preferred by the petitioner bearing Appeal no.386/2013 has been dismissed.
It appears that the petitioner was a fair price shop dealer of Village Milak Chikana, Tehsil Sadar, Ditrict Rampur and he was continuously distributing the essential commodities at the rates fixed by Food and Civil Supply Department among valid card holders. On certain complaint made by some persons of the village in question, his fair price shop licence was suspended on 9.7.2012 and he was issued a charge sheet alleging that the petitioner committed irregularities in distribution of essential commodities in the month of June, 2012. The petitioner had submitted a detailed reply on 17.7.2012 alongwith the notorized affidavits of the persons, who allegedly moved the complaint for non-distribution of the essential commodities. Finally, the licensing authority vide order dated 23.8.2012 as per his own wisdom on the basis of enquiry had restored the licence of the petitioner. Thereafter, only within a week the fair price shop of the petitioner was again suspended on 30.8.2012 and he was issued another show cause notice alleging irregular distribution of essential commodities as well as kerosene oil. The cognizance was taken by the authority on the basis of the complaint, which was addressed to the Minister of Nagar Vikas, Government of U.P., Lucknow on 28.5.2012 and the Minister concerned had made an endorsement on the said complaint on 28.7.2018 for taking cognizance in the matter. The said complaint has been brought on record as Annexure No.CA-1 to the affidavit. Finally, the fair price shop licence of the petitioner has been cancelled on 11.9.2012 and the same has been approved by the Appellate Authority vide order dated 18.7.2013.
In this backdrop, learned counsel for the petitioner precisely submits that the petitioner had been distributing the essential commodities fairly and according to Government orders and fixed price. The certified certificate has also been issued by the Secretary and Pradhan of the said village in his favour. The false complaint was made before the authority concerned in the month of June, 2012 to which the petitioner submitted his detailed reply on 17.7.2012. Once the first charge sheet was given to the petitioner on 9.7.2012 and on the basis of detailed response furnished by the petitioner the said suspension order was recalled and his licence was restored then on the similar circumstance the second show cause notice could not be sustained. Once the authority had taken a prudent decision for restoring the fair price shop licence of the petitioner then in such situation the authority concerned has erred in law in again appreciating the first complaint, which was endorsed by the Minister concerned on 28.7.2012. The Licensing Authority has not considered the objection/reply of the petitioner as well as the affidavits filed by the villagers/cardholders and passed the impugned order dated 11.9.2012 whereby licence of his fair price shop has been cancelled. The said order was assailed by the petitioner by preferring an appeal before the Commissioner of the Division and the same has also been dismissed on 18.7.2013.
Learned counsel for the petitioner also submits that the entire action so initiated against the petitioner on the alleged complaint, is in the teeth of dictum of Full Bench judgement of this Court in Puran Singh vs. State of U.P. and others 2010 (3) ADJ 659 (FB), which has 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. At no point of time, the inquiry has ever been conducted in the matter and as such, both the orders impugned cannot sustain and 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 not responded to the second show cause notice dated 30.8.2012. The complaint was made against the petitioner and the same was duly received by the Minister concerned. In case there were certain irregularities in distribution of essential commodities then in such situation the authority had no other option expect to proceed in the matter on the basis of directions so issued by the Minister concerned and cancel the fair price shop license of the petitioner on 11.9.2012. The same has also been approved by the Appellate Authority on 18.7.2013. 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.
So far as the factual aspect of the matter is concerned, the same is accepted by both the parties and there is no dispute regarding the same. It is admitted situation that in response of the first show cause notice, wherein allegations were made against the petitioner regarding non-distribution of the essential commodities in the month of June, 2012, the petitioner has already filed detailed reply alongwith duly notorized affidavits of the persons, who allegedly moved the complaint in question for non-distribution of the essential commodities and after receipt of his detailed reply, the licensing authority had dropped the charges and restored the fair price shop licence of the petitioner on 23.8.2012. In such situation the Court is of the opinion that there was no occasion for the respondents to take into account the first complaint, which was addressed to the Minister concerned, again within a week's time. The cognizance has been taken by the authority concerned and the second show cause notice was issued to him alleging non-distribution of essential commodities in the month of June, 2012. Admittedly, in the present matter, the licensing authority has cancelled the fair price shop licence of the petitioner without considering the objections filed by the petitioner and the affidavits of the complainant/card holders and at no point of time, the Authority has 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. The said view has also been affirmed by this Court in Smt. Santara Devi vs. State of U.P. and others 2016 (2) ADJ.
In view of the above, this Court is of the considered opinion that both the orders impugned cannot sustain and accordingly, both the orders impugned are set aside. The licensing authority is directed to restore the fair price shop of the petitioner forthwith and the petitioner may be permitted to lift the quota from the next month. However, It will be open to the competent authority to hold a full fledged enquiry and pass a fresh order in accordance with law.
The writ petition stands allowed.
Order Date :- 23.1.2019 RKP