Satyabhan vs The State Of U.P. Thru Secy. And ...
2012 Latest Caselaw 2130 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 22
 

 
Case :- WRIT - C No. - 25990 of 2012
 

 
Petitioner :- Satyabhan
 
Respondent :- The State Of U.P. Thru Secy. And Others
 
Petitioner Counsel :- Vishal Khandelwal
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Heard learned counsel for the petitioner and the learned Standing Counsel.

By means of present petition, the petitioner has sought for quashing orders dated 20.11.2009 and 14.2.2012 passed by the respondent nos. 4 & 3 respectively.

The case of the petitioner is that earlier on 27.6.2009, the Block Development Officer, Fatehabad, Agra recommended respondent no. 4 i.e. Sub Divisional Magistrate, Fatehabad for cancellation of agreement of the fair price shop of the petitioner on the resolution dated 9.6.2009 passed by the Gram Panchayat. According to the case of the petitioner, in the resolution of the Gram Panchayat dated 9.6.2009 certain villagers participated and made complaint against the petitioner and on the basis of voting of the villagers a resolution was passed to the effect that the petitioner has committed irregularities in distribution of food-grains. On the basis of said resolution and the report submitted by the Block Development Officer, a show cause notice dated 17.7.2009 was issued to which the petitioner submitted his reply.

A perusal of show cause notice shows that charges were levelled against the petitioner on the basis of resolution of the Gram Panchayat dated 9.6.2009. The fair price shop agreement in favour of the petitioner was cancelled vide order dated 16.9.2009 passed by the Sub Divisional Magistrate, Fatehabad.

Aggrieved, the petitioner filed a writ petition no. 55379 of 2009(Satyabhan vs. State of U.P. & others). The said writ petition was allowed by means of judgment and order dated 5.11.2009 which is quoted below:-

"We have heard Sri Sunil Kumar Pathak, learned counsel for the petitioner and Sri C.K.Rai, learned standing counsel appearing for the respondents and have perused the averments made in the writ petitioner and its annexures.

Vide order dated 23rd October, 2009 the Court had directed the learned standing counsel to obtain instruction. On the basis of the instruction received he stated that an enquiry was conducted by the Block Development Authority, who suggested to hold an open meeting of the Gram Panchayat to verify the fact as to how many persons are in favour for the petitioner for continuance of the licence and how many persons are against. A meeting was held and majority of persons were against the petitioner and, therefore, licence of the petitioner's fair price shop has been cancelled. The procedure adopted by the authorities for cancelling the licence is not justified in law as in the order of suspension certain irregularities were mentioned to which the petitioner has submitted his reply/explanation. The reply/explanation has not been considered at all. Merely because majority of the villagers are against the petitioner, it would not empower the authorities to cancel the fair price shop licence of the petitioner as if this procedure is adopted, day in and day out fair price shop licence would be cancelled as in our country village politics is very peculiar in nature.

The writ petition is, therefore, allowed and impugned order dated 16th September, 2009, filed as annexure 4 to the writ petition, is set aside. The Sub Divisional Magistrate, Tehsil Fatehabad, Agra- respondent no.2 is directed to pass a fresh order in accordance with law after considering the explanation submitted by the petitioner within two weeks from the date a certified copy of this order is filed before the said authority."

The petitioner  also preferred  an appeal against the order of  Deputy Commissioner(Food  & Supply), Agra  Division, Agra which also met the same  fate. 

Learned  counsel for the petitioner  further  submits that  reply  submitted  by him dated 29.7.2009 to the show  cause notice   dated  17.7.2009 was considered  by the  Sub  Divisional  Magistrate, Fatehabad and the order for  cancellation of  agreement of  fair price shop  was passed.  While passing  the  said order, the  Sub  Divisional  Magistrate, Fatehabad  observed that the reply submitted by the petitioner is not  satisfactory and in view of  Clause  7.1 of  the  Government  Order dated 30.7.1990 in case any illegality is  found, the  District  Magistrate  has power to cancel the fair price shop agreement on the basis of resolution of Gram  Sabha.  He  further  submits that the order  dated 20.11.2009 passed  by the respondent  no. 4 is  in teeth of judgment  and order dated 5.11.2009 passed  by this  Court  wherein observations were  made  to the effect that the procedure  in cancellation of fair price shop of the petitioner on the   basis of resolution of  Gram  Sabha  is not justified in law.  Learned  counsel for the petitioner  further  submits that this  Court in its  judgment and order dated 5.11.2009 has  gone  to the  extent of  observing  that  in case   such   a  procedure is  adopted , it  would empower  the  authorities  to cancel  the fair price shop licence day in and day out as in our country village politics is very peculiar in nature.

Learned  Standing  Counsel  refuting  the submission of learned counsel for the petitioner states  that  by means of judgment and order dated 5.11.2009,  this  Court  has directed the  Sub  Divisional  Magistrate, Tehsildar,  Fatehabad, Agra (respondent no. 4 in the  present  petition) to pass  a  fresh order in accordance with law  after  considering  explanation submitted  by the petitioner within  two weeks  from  the date a certified copy of the order is produced  before it. The order dated  20.11.2009 was passed  by the respondent no. 4  after  consideration of  explanation submitted by the petitioner and there is no illegality in the order passed  by the  Sub  Divisional  Magistrate, Fatehabad. He  further  submits that the   cancellation of  agreement of  fair price shop can be  done  on the  basis  of  resolution of Gram  Sabha.

Learned  counsel for the petitioner further  submits that  as per the  Government  Order and the  Circulars  issued   providing procedure  for  cancellation of  fair  price shop dated 29.7.2004,  on receipt of the  complaint, the officer  concerned is required to enquire into it by way of initiation of preliminary enquiry to test the  allegations  with regard to the  irregularity  against the allottee. In case  in preliminary enquiry, such  irregularity is prima  facie  established,  then on the  basis of  that the  authorities  can proceed  to  suspend the supply of the  allottee  and  can proceed  for  cancellation of  licence of  fair  price shop. To  substantiate his  arguments, learned counsel for the petitioner  relied upon the  Division Bench  judgment of this  Court  reported in 2009(2) AWC 1066 (Gulab Chandra  Ram Vs.  State of  U.P. & others) and  another  judgment   of  learned  Single  Judge  reported in 2009(3) AWC 2115 (Nababuddin Khan vs. State of  U.P. & others). Para 8 of the Division Bench and extract of para 10 of the judgment of learned Single Judge are quoted below:-

"8.The above clause shows that in case a complaint is made against an allottee of a fair price shop, a preliminary enquiry is required to be held against the said allottee. In the preliminary enquiry if such irregularities are found to be prima facie established on the basis of which there is a possibility for cancellation of the allotment then the fair price shop agency will be suspended and simultaneously a show-cause notice will be issued to the allottee as to why the allotment be not cancelled. The show-cause notice to be issued to be allottee must contain the details of all the irregularities found in the preliminary enquiry regarding which the allottee is expected to give his reply."

"10.Circular dated 29th July, 2004 issued by the Principal Secretary to all the District Magistrates and the District Supply Officers of U.P. Provides the complete procedure for suspension and the cancellation of the licences. Clause 2(1) provides that on the receipt of the complaint, the officer concerned may get the enquiry made and thereafter on prima facie establishment of gross irregularities, agreement can be suspended and show cause notice be issued that why the agreement may not be cancelled and if in the enquiry, it is found that irregularities are not of serious nature, the agreement may not be cancelled. "

A  perusal of the  record makes  it clear that  no preliminary enquiry   whatsoever  has  been done  by the respondent  authorities  after receipt of the complaint  against the petitioner.  The  resolution of the Gaon Sabha dated 9.6.2009 passed  against the petitioner at the most can only be  termed a  complaint by the villagers. The respondent  authorities  were   under obligation to make  preliminary  enquiry and   only after  the  enquiry  into the allegations made   by various  villagers in the  meeting of the  Gaon  Sabha dated 9.6.2009,  the show  cause notice  ought to have  been issued to the petitioner for  suspension/cancellation of fair price shop. On the other hand, the respondent authorities  treated the  resolution of the  Gaon Sabha dated 9.6.2009  as a  gospel truth and issued  the  show cause notice   lavelling the charges against the petitioner on that basis.

In view  of the above  discussion and the  judgment of this  Court  in Gulab Chandra  Ram (supra)and  Nababuddin Khan(supra), the order dated  20.11.2009 passed  by  respondent no. 4 i.e. Sub  Divisional  Magistrate, Fatehabad, Agra  and the order dated 14.2.2012 passed by the Deputy Commissioner( Food & Supply), Agra  Division, Agra cannot be sustained.  Both the orders are hereby quashed.  The writ petition is allowed.

However, it is  kept open for the respondent  authorities  to proceed in accordance  with provisions  as prescribed  under law and pass a fresh order against the petitioner  after  providing  full opportunity of hearing.

Order Date :- 24.5.2012

P.P.