Rajesh Singh vs State Of U.P. And 2 Others
2017 Latest Caselaw 427 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment Reserved on  8.03.2017
 
                                       Judgment Delivered on  11.5.2017
 

 
Court No. - 48 
 

 
Case :- WRIT - C No. - 4860 of 2017 
 

 
Petitioner :- Rajesh Singh 
 
Respondent :- State Of U.P. And 2 Others 
 
Counsel for Petitioner :- M.P. Srivastava,Ajay Kumar Srivastava 
 
Counsel for Respondent :- C.S.C. 
 

 
Hon'ble Surya Prakash Kesarwani,J.

1. Heard Sri M.P. Srivastava, learned counsel for the petitioner and the learned standing counsel for the State respondents.

2. This writ petition has been filed praying for the following relief:

A.     Issue a writ, order or direction in the nature of certiorari to quash the impugned order 5.10.2016 passed by respondent no.3.
 

 
B.     Issue a writ, order or direction in the nature of mandamus commanding respondents to restore the fair price shop which was suspended in the year of 2007 and supply the Essential commodities to the petitioner for distribution of goods to the card holder.
 

 
C.     Issue any other writ, order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the present case.
 

 
3.	On 3.2.2017, this Court heard the writ petition in detail and entertained it despite there being an alternative remedy of appeal.
 

 
Facts:
 

4. Briefly stated facts of the present case are that the petitioner was a fair price shop agent of village Panchayat Hoteypur, Tehsil Kayamganj, District Farrukhabad. His fair price shop agreement was cancelled by the respondent no. 3 by an ex-parte order dated 27/28.12.2007 on the sole ground that a case under Section 3/7 Essential Commodities Act, 1955 has been lodged against the petitioner in P.S. Kampil. The petitioner filed an Appeal No. 419 of 2008 which was allowed by the appellate authority by order dated 11.02.2008 observing that the order was passed by respondent no. 3 without affording any opportunity to the petitioner and thus it is violative of principles of natural justice. Thereafter, the petitioner moved an application dated 10.04.2008 before the respondent no. 3 annexing therewith certain evidences namely copies of 10 ration cards, copy of pass book of Bank of India and photocopies of 10 affidavits. The respondent no. 3 again passed the order that since pursuant to the notice dated 03.03.2008 requiring the petitioner to make his submission within three days, no evidence was submitted and a case under Section 3/7 E.C. Act is pending in the court and as such the representation is rejected. This order was passed by the respondent no. 3 on 11.04.2008. In the case against the petitioner under section 3/7 E.C. Act, a final report was submitted by the police which was accepted by the court of Addl. Chief Judicial Magistrate, Farrukhabad by order dated 28.01.2015. Consequently, the petitioner moved an application before the respondent no. 3 dated 29.01.2015 contending that a final report has been filed in the case under Section 3/7 E.C.Act which, has been accepted by the court and as such the sole basis for cancellation of fair price shop agreement of the petitioner now stands removed and therefore, his agreement may be restored. Since nothing was done and as such the petitioner filed an Appeal No. 179 of 2015 which was allowed by the appellate authority by order dated 27.07.2015 observing that since the very basis of cancellation of fair price shop agreement of the petitioner stands removed and as such the order dated 11.04.2008 is set aside. The matter was remitted back by the appellate authority to the respondent no. 3 to pass an order afresh.

5. Now in third round of litigation, pursuant to the remand order of the appellate authority, the respondent no. 3 again passed an order dated 08.10.2015 observing that since no reply was submitted by the petitioner within the time allowed pursuant to the notice dated 31.03.2008 and since his agreement was cancelled on 27.12.2007 and a new fair price shop agent namely one Smt. Reeta Devi has been appointed by order dated 13.02.2008 which has not been challenged by the petitioner and as such the representation of the petitioner is rejected.

6. Again the petitioner challenged this order of the respondent no. 3 dated 08.10.2015 in Appeal No. 228 of 2016 which was allowed by the appellate authority vide order dated 23.07.2016 observing that the respondent no. 3 has erroneously passed the order without following the direction given in the order dated 27.07.2015. Consequently the appellate authority had set aside the order of the respondent no. 3 dated 08.10.2015 and again remitted back the matter to the respondent no. 3. However, the respondent no. 3 again acted arbitrarily and passed the impugned order dated 05.10.2016 observing that the petitioner has not submitted any solid evidence/ reply and that a fair price shop agent was appointed against whom the card holders have no complaint and as such the representation of the petitioner is rejected.

7. When this Court confronted the respondent no.3 with the fact as aforenoted by order dated 3.2.2017 and directed him to file his personal affidavit showing cause that why repeatedly he had not complied with the orders of the appellate authority causing financial loss and harassment to the petitioner and why heavy cost be not imposed for misconduct shown by him and the harassment caused to the petitioner and why the cost be not recovered from him in view of the law laid down by State of Punjab Vs. Atma Singh (2014) 13 SCC 666 (para 14), a personal affidavit dated 28.2.2017 was filed by the respondent no.3 on 7.3.2017 in which in paragraph 12,13,17 and 18 the respondent no.3 stated as under:

"12. That the deponent respectfully submits that the period during which the order dated 27.7.2015 was passed, the deponent was posted as Sub Divisional Magistrate, Tehsil Sadar, District Etash. As has already been stated, the deponent has joined his present posting as Sub Divisinal Magistrate, Tehsil Kayamganj, District Farrukhabad only on 01.10.2015.

13. That, it is respectfully submitted that by the time the deponent joined his present posting at Farrukhabad, the process of three tier Panchayati Raj Elections 2015 had already begun and as such the deponent, could not give sufficient time to examine the case at hand and as such the order dated 08.10.2015 had been passed in ignorance for which the deponent tenders his unconditional apology. The mistake as committed by the deponent in passing the order dated 08.10.2015 was a bonafide mistake and the same was never intentional. The deponent again respectfully tenders his unconditional apology.

17. That the deponent wishes to concede fairly that in view of the pending revision of voter list, he could not focus on the case at hand and again proceeded to pass the impugned order in ignorance of the previous history of the case.

18. That the deponent has a very short span of his service behind him. As such, the deponent has again passed the impugned order in ignorance of the previous history of the case, for which he is again tendering his unconditional apology with folded hands. The mistake as committed by the deponent in passing the impugned order dated 05.10.2016 is a bonafide mistake due to his lack of experience and his short span of service and he undertakes not to repeat such mistake in future and to perform his duties with due diligence and to the best of his abilities. The deponent had never such intentions so as to harass the petitioner. The deponent again tenders his unconditional apology for the mistake committed by him in ignorance of the previous history of the case."

Submission:

8. Learned counsel for the petitioner submits that 3rd time the petitioner approached to the appellate authority against the order of cancellation and despite repeated remand orders by the appellate authority remitting back to the matter to the adjudicating authority with specific directions, the adjudicating authority has not followed the directions and repeatedly passed the order of cancellation on the same ground. Thus the order is wholly arbitrary, illegal and whimsical. He further submits that the entire basis of cancellation of fair price shop agreement of the petitioner was the alleged F.I.R. against the petitioner under Section 3/7 of the Essential Commodities Act, 1955 in which the police submitted a final report which was accepted by the learned Additional Chief Judicial Magistrate, Farrukhabad, and thus the entire basis of passing the order of cancellation stood removed. He further submits that apart from above mere lodging of F.I.R. under Section 3/7 of the Essential Commodities Act could not have been made sole basis for cancellation of the fair price shop agreement.

9. Learned standing counsel submits that after cancellation of fair price shop agreement of the petitioner the fair price shop in question was allotted to one Smt. Rita Devi on 13.2.2008 which allotment order was not challenged by the petitioner. Referring to paragraphs 12, 13, 17 and 18 of the personal affidavit of the respondent no.3, dated 28.2.2017 filed on 7.3.2017, the learned standing counsel submits that the deponent of the affidavit have joined present place of posting as S.D.M., Tehsil - Kayamganj, District - Farrukhabad on 1.10.2015 and could not examine the case while passing the order dated 8.10.2015 since the process of Panchayat Raj Election 2015 had begun and similarly while passing the order dated 5.10.2016, he could not focus on the case and passed the impugned order in ignorance of the previous history of the case since revision of voter list was pending. The said deponent has tendered unconditional apology and states that the impugned order dated 5.10.2016 was passed due to a bonafide mistake and lack of experience. On these basis the learned standing counsel submits that accountability of the respondent no.3 may not be fixed.

Discussion and Findings:

10. I have carefully considered the submissions of learned counsel for the petitioner and the learned standing counsel.

11. From the facts as aforenoted and on admission of the State respondents, it is evident that the excuse given by the respondent no.3 in his personal affidavit dated 28.2.2017 for not following/ignoring the repeated remand directions, are lame excuses and depicts not only wilful and deliberate failure of the respondent no.3 to discharge his duties but also abuse of power by him which caused serious prejudice to the petitioner and compelled him to indulge in litigation for about 10 years even though he succeeded three times in appeals filed by him and each time the matter was remanded with specific directions to the respondent no.3 and each time the respondent no.3 passed orders in complete disregard to the orders of the appellate authority.

12. Perusal of the First ex-parte order of cancellation dated 27/28.12.2007 clearly shows that the agreement of the petitioner was cancelled merely on the ground that on the preceeding day i.e. 26.12.2007 an F.I.R. under Section 3/7 Essential Commodities Act, 1955 was lodged against the petitioner. In the case of Raj Kumar Vs. State of U.P. and others 2011(3) A.D.J. 638, this Court held that fair price shop agreement can not be cancelled merely on account of pendency of criminal case/F.I.R. Thus, the ex parte order dated 27/28.12.2007, passed merely on account of lodging of F.I.R. under Section 3/7 of the Essential Commodities Act for cancelling the fair price shop agreement, itself was wholly unsustainable. Even this ground became non existent in view of fact that in the aforesaid criminal case the police submitted a final report which was accepted by the learned A.C.J.M. Farrukhabad.

13. So far as, subsequent allotment of fair price shop in question to another person is concerned, the legal position stands settled since long by series of judgments of this Court including Division Bench judgments that a subsequent allottee has no right to hold the licence if appeal of the earlier licencee is allowed. Reference in this regard may be had to the judgments of this Court in the case of Shyamawati v. Commissioner, Agra and others ADJ 2007 (5) 233, Mr Asraf Ali v. State of U.P., Writ-C No.6870 of 2016, decided on 25.2.2016 (Paragraph Nos. 15 and 16 ), Nasaruddin v. State of U.P. and others, 2015 (11) ADJ 557, Smt. Javitri Devi v. State of U.P. and others Writ-C No.63117 of 2015, decided on 18.11.2015, Shyam Singh v. State of U.P. and four others, Writ -C No.63882 of 2015, decided on 4.12.2015 and Roop Kishor v. State of U.P. and four others Writ-C No.68087 of 2015, decided on 18.12.2015.

14. Even a subsequent allottee is neither a necessary party nor a proper party in the challenge made by the original allottee to the order of cancellation of the fair price shop agreement as held by Hon'ble Supreme Court in the case of Poonam Vs. State of U.P. and others 2016 (7) A.D.J. 530 SC.

15. In view of the aforesaid, it is evident that the cancellation of fair price shop agreement of the petitioner was the result of deliberate act of illegal, arbitrary and whimsical exercise of power by the State respondents and as such the impugned order dated 5.10.2016, passed by the respondent no.3 can not be sustained and is hereby quashed. The fair price shop agreement of the petitioner is restored.

16. In view of the above discussion, the impugned order dated 5.10.2016, passed by the respondent no.3 is quashed. The fair price shop agreement of the petitioner for Villlage panchayat Hoteypur, Tehsil Kayamganj, District Farrukhabad is restored forthwith. The writ petition is allowed with cost of Rs.25,000/- which shall be paid by the State respondents to the petitioner within a month. State Government shall be at liberty to recover the cost from erring officers/employees in accordance with law after reasonable opportunity of hearing to him/them.

Order Date :- 11.5.2017/vkg