Allahabad High Court
Kamlesh Kumar Chauhan vs State Of U.P. Thru Secy. And Others on 8 November, 2017
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 25
Case :- WRIT - C No. - 38285 of 2012
Petitioner :- Kamlesh Kumar Chauhan
Respondent :- State Of U.P. Thru Secy. And Others
Counsel for Petitioner :- Kunwar Singh
Counsel for Respondent :- C.S.C.
Hon'ble Siddhartha Varma,J.
After the petitioner's shop was suspended on 24.1.2009, a show cause notice was issued to him on 16.3.2009. Essentially the charges were that the petitioner had not being supplying essential commodities to certain card holders properly. It has been alleged that an inspection was done on 20.1.2009 and thereafter on 22.1.2009 a first information report was lodged and thereafter the petitioner's shop was suspended on 24.1.2009. To the show cause notice, the petitioner replied on 8.5.2009. Thereafter, a certain enquiry was conducted in which the affidavits as were submitted by the petitioners were found to have been sworn by the deponents under some pressure of the petitioner and, therefore, the reply of the petitioner was not found satisfactory on 8.2.2010 by the Supply Inspector. He was again given a show cause notice on 8.9.2010 and thereafter on 10.10.2010 the petitioner's shop was cancelled. The petitioner appealed and the Appellate Authority also dismissed the appeal on 29.9.2011. Aggrieved thereof the petitioner has filed the instant writ petition.
The counsel for the petitioner has submitted that the card holders who had given their affidavits and who have been alleged to have said that they had given the affidavits under some pressure were never allowed to be cross examined by the petitioner.
The petitioner further submitted that the second show cause notice which was sent to him on 8.9.2010 never reached him. This is what he has also said in paragraph-12 of the writ petition and also in ground no.9 of the memo of appeal. The further case of the petitioner is that even if he had not replied to the show cause notice then this could not have been a ground for the cancellation of his licence. The enquiry officer had to be convinced on the basis of the evidence as was led by the complainant or the inspecting officer and only if he was satisfied with the evidence as was placed before him he could have cancelled the licence. Further more, it has been stated that the order dated 10.10.2010 also found that the petitioner was not a resident of Gram Panchayat-Udhan. He submits that this was neither a charge nor any enquiry in this regard was made.
Learned Standing Counsel in his reply states that the averment made in paragraph-12 of the writ petition had been denied by him in paragraph-12 of the counter affidavit and he states that in fact a notice was served upon the petitioner. It has been further stated that it was only in the interest of the villagers that the licence of the fair price shop of the petitioner should have been cancelled.
Having heard learned counsel for the petitioner and the learned Standing Counsel, I am of the definite view that the orders dated 10.12.2010 passed by the Up-Ziladhikari, Tehsil Bansdeeh, District Ballia and the order dated 29.9.2011 passed by the Commissioner were erroneous and were to be quashed. After the record of the writ petition is seen, it becomes certain that the show cause notice was definitely not served on the petitioner. The petitioner made an averment to the effect in the writ petition which has only been vaguely denied in the counter affidavit. It is settled law that a vague denial is an acceptance. Thus, the State has virtually admitted that the second show cause notice was never served upon the petitioner. Even if the reply was not submitted by the petitioner, the enquiry officer should have looked into all aspects of the case and if the evidence was not placed before him, he should have called for the same and only after an objective satisfaction, he should have concluded that the licence could be cancelled. It is not sufficient for the Sub-divisional Officer to have said that as the reply was not there the charges were to be believed. In Ajad Kumar Vs. State of U.P. and 2 others (Writ Petition No. 46648 of 2017) decided on 23.10.2017, this Court has held that the deciding authority cannot decide against the petitioner simply because he had not submitted his reply.
Still further I find that the averment made by the card holders to the effect that they had given the affidavits under pressure also is unbelievable because the petitioner was never given any opportunity to cross examine them and in absence of cross-examination, the statements made by them against the petitioner was nothing else but a waste paper. The finding arrived at by the Sub-divisional Officer shows that the petitoner was not a resident of the Gram Panchayat-Udhan also has been arrived at without any charge.
Under such circumstances, the writ petition is allowed and the orders dated 29.9.2011 and 10.12.2010 are quashed.
Order Date :- 8.11.2017/Ashish Pd.
