Ram Narayan Singh vs State Of U.P. Thru ...
2017 Latest Caselaw 5286 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 6
 

 
Case :- MISC. SINGLE No. - 6250 of 2013
 

 
Petitioner :- Ram Narayan Singh
 
Respondent :- State Of U.P. Thru Prin.Secy.Deptt.Of Food & Civil Supply &O
 
Counsel for Petitioner :- Dwijendra Mishra,Rajeiu Kumar Tripathi,Ubhai Kumar Singh
 
Counsel for Respondent :- C.S.C.,Ravindra Kumar Singh
 

 
Hon'ble Anant Kumar,J.

(1) Heard Shri Rajeiu Kumar Tripathi, learned counsel for the petitioner, learned Standing Counsel and perused the record.

(2) Instant writ petition under Article 226 of Constitution of India has been filed with the following prayers:

(a) To issue writ, order or direction in nature of certiorari hereby quashing the impugned cancellation order dated 15.02.2013 passed by opposite party no.3 has contained in Annexure No.1 to this writ petition through which petitioner's fair price shop license has been cancelled.

(b) To issue writ, order or direction in nature of certiorari hereby quashing the impugned order dated 31.08.2013 passed by opposite party no.2 as contained in Annexure no.2 to this writ petition through which the appeal of the petitioner has been rejected by the Additional Commissioner.

(c) Issue a writ, order or direction in the nature of mandamus commanding and directing the opposite parties to allow the petitione to run the fair price shop of village Kotha, Tahshil - Rarabganj, District - Gonda.

(d) Issue a writ, order or direction in the nature of mandamus commanding and directing the opposite parties not to create third part interest by fresh allotment during the pendency of the writ petition.

(e) Issue any other suitable order or direction which this Hon'ble court may deem, fit just and proper under the circumstances of the case in favour of petitioner .

(3) It is stated by learned counsel for the petitioner that the petitioner was running a fair price shop under the licence issued by respondents. The licence of fair price shop of the petitioner was suspended by Sub-Divisional Magistrate vide its order dated 21.01.2013, on the basis of an inspection report prepared by the Area Rationing Officer dated 19.01.2013 and the suspension order dated 21st January, 2013 was served upon the petitioner and he was directed to submit his reply. After considering the reply submitting by the petitioner, licence of the petitioner's fair price shop was cancelled by the Sub-Divisional Magistrate, Tehsil - Tarabganj, District - Gonda vide its order dated 15.02.2013. Aggrieved with the said order, an appeal as prescribed under law was filed by the petitioner before the Additional Commissioner Administration Devipatan Division, Gonda being Appeal No.112 and 113 under Section 28(3) of the U.P. Schedule Commodities Distribution Order, 2004 issued on 29.7.2004, which were dismissed, hence, this petition.

(4) It is stated by learned counsel for the petitioner that when the surprise inspection of the shop of the petitioner was made, statement of certain card-holders were recorded but while suspending the shop in question and while explanation was called, copy of the same, which was against the petitioner was not supplied to him as the suspension order dated 21st January, 2013 does not reflect the same. It is further stated that when the aforesaid shop of the petitioner was cancelled, a report of Area Rationing Officer dated 19.01.2013 was also found against the petitioner but copy of the same was never supplied to him. It is further stated that whatsoever irregularities were found against the petitioner was never communicated to him and he was also not given appropriate opportunity to explain the same and the order impugned was passed without giving proper opportunity of hearing as enumerated in Government Order dated 29th July, 2004. The impugned order dated 15th February, 2013 (Annexure-1 to the writ petition) does not show that any opportunity of hearing was given to the petitioner and the order impugned has been passed in utter violation of principle of natural justice and against the settled norms of law as well as Government order dated 29th July, 2004.

(5) In this regard, a case law 2017 (35) LCD 128; Thakur Prasad V. State of U.P. & others, has been cited, wherein it is held as under:

"10. A Full Bench of this Court in the case of Puran Singh vs. State of U.P. and others (2010) 2 UPLBEC 947 has held that in case, after suspension of the agreement to run fair price shop, the authority decides to hold an inquiry for cancellation of the agreement then that requires full fledged inquiry, which, in view of the law laid down by this Court in Ashok Kumar Tiwari Vs. State of U.P. and others (Writ-C No. 12737 of 2013, decided on 28.11.2014) and Smt. Santara Devi vs. State of U.P. and others (2016(2) ADJ 70), means the service of the charge-sheet, inquiry report, statements of the cardholders/complainants, copy of the complaints and other supporting materials which are to be relied upon in support of the charges levelled against the fair price shop agent.

11. In view of the fact that neither the copy of the charge-sheet nor inquiry report was supplied to the petitioner meaning thereby there was no inquiry as intended in the government order and interpreted by this Court in the case of Puran Singh (supra).

12. In view of foregoing discussions, I am of the opinion that in absence of the formal inquiry as desired, the impugned orders dated 11.10.2013 passed by the Deputy Commissioner (Food) Varanasi Region Varanasi as well as order dated 31.12.2012 passed by the Sub-Divisional Officer Shahganj, District Jaunpur cannot be sustained in the eyes of law."

(6) On behalf of petitioner, another case law 2017 (35) LCD 459; Mohammad Eherar v. Additional Commissioner Judicial, Faizabad Division & Others, has been cited, wherein this Court held as under:

"13. I am of the considered view that the enquiry officer should have proceeded on the basis of evidence on record to come to conclusion as to whether the said charge is found proved or not. It cannot be presumed that the charge is proved in case no reply has been submitted by the delinquent licencee in this regard. Moreover, it is to be observed that in case statement of any card holder is relied in the enquiry the said card holder is required to be examined in the enquiry and it cannot be presumed that the statement of card holder which was taken at the time of preliminary enquiry is correct as the said statement was taken behind the back of delinquent licencee and the said card holder has not been put to cross-examination and no opportunity was provided to the delinquent licencee in this regard. As such, the findings of the enquiry officer on the alleged charges as noted in the impugned order were totally perverse and are not sustainable in the eyes of law. The appellate authority has also failed to take into consideration this aspect of the matter and has proceeded to dismiss the appeal on presumptions. The appellate court order is also not sustainable in the eyes of law."

(7) In another case law 2015(33) LCD 1262 Smt. Radha Devi v. State of U.P. and others, this Court held as under : -

" 4. The contention of the learned counsel for the petitioner is that the affidavits submitted by the petitioner in support of her reply were important piece of evidence, which have been illegally ignored by the authorities. In support of his submission, learned counsel for the petitioner has relied upon two decisions of this Court in the case of Krishna Manohar vs. State of U.P., 2009 (8) ADJ 214 and Phool Chand Yadav vs. State of U.P., 2009 (4) ADJ 623 to contend that the authorities are under obligation to consider the affidavits before recording a categorical finding against the petitioner.

5. Per contra, learned Standing Counsel appearing for the respondents submits that the learned Divisional Commissioner has thoroughly considered the contents of the affidavits filed by the petitioner and has recorded a finding that merely on the basis of the affidavits of the card holders filed subsequently, the petitioner cannot be absolved of the charges levelled against him. He thus, submits that the present petition is devoid of merit and liable to be dismissed."

(8) Looking to the fact and circumstances of the the case, it is evident that the impugned order has been passed in utter violation of principle of natural justice and against the law as well as against Government Order dated 29th July, 2004.

(9) In view of above, to my view, this writ petition is liable to be allowed. Accordingly, the writ petition is allowed. Impugned order 15.02.2013 passed by Opposite Party No.3 - Up. Jila Adhikar / Sub-Divisional Magistrate, Tahsil - Tarabganj, District Gonda (Annexure 1 to the writ petition) and impugned order dated 31.08.2013 passed by Opposite Party No.2 - Additional Commissioner Administration, Devi Patan Division, Gonda (Annexure 2 to the writ petition) are set aside and the matter is relegated back to Opposite Party No.3 to decide the matter afresh in the light of observation made above after providing proper opportunity of hearing to the petitioner and after perusing the original record. Since the matter is old one, it is aspected by Opposite Party No. 3 to take decision earliest, preferably within two months from the date of production of certified copy of this order.

Order Date :- 10.10.2017

S. Kumar