Allahabad High Court
Arif Khan vs State Of U.P. Thru Secy. Food U.P. ... on 23 October, 2017
Bench: Anant Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 23
Case :- MISC. SINGLE No. - 4114 of 2014
Petitioner :- Arif Khan
Respondent :- State Of U.P. Thru Secy. Food U.P. Govt. Civil Sectt. & Ors
Counsel for Petitioner :- Dhananjai Kumar Tripathi,Rajesh Kumar Singh,Vijayendra Prakash Tripat
Counsel for Respondent :- C.S.C.
Hon'ble Anant Kumar,J.
The present petition has been filed with the following prayers:
i..) A writ order or direction in the nature of CERTIORARI thereby quashing the order dated 09.06.2014 passed by the Additional Commissioner (Administration) Devi Patan Mandal Gonda in appeal No.304/67 (Arif Khan versus State of U.P. & others) and also quash the order dated 3.7.2012 passed by the opp. Party no.3 contained as ANNEXURE NO.1 & 2 to this writ petition.
ii..) A writ, order or direction in the nature of MANDAMUS be issued commanding the opposite parties to permit the petitioner to run the fair price shop of village panchayat Karaniya, Vikas Khand Risiya, Tahsil Nanparam, District Bahraich during pendency of the writ petition.
iii..) Any other order or direction in which this Hon'ble court may deem fit and proper under the facts and circumstances of the case may also be passed in favour of the petitioner.
iv..) Allow the writ petition with cost in favour of the petitioner.
Heard learned counsel for the petitioner, learned Standing Counsel for the State and perused the record.
Petitioner was a fair price shop's licence holder in Gram Panchayat - Karniya, Vikas Khand Risiya, Tahsil - Nanpara, District - Bahraich. An inspection of his fair price shop was made by a Supply Clerk, Nanpara, Bahraich and certain irregularities were found. On the basis of said irregularities, the fair price shop of the petitioner was suspended vide order of Sub-Divisional Magistrate concerned dated 24.05.2012 and an opportunity of submitting his reply was given to the petitioner. Petitioner had submitted his reply dated 19.06.2012 and after considering his reply, his licence of fair price shop was cancelled vide order dated 03.07.2017. Aggrieved by the said order, petitioner had filed a statutory appeal before the Additional Commissioner (Administration) Devi Patan Mandal, Gonda under Section 28(3) of Uttar Pradesh Essential Commodities Distribution Order, 2004, which was dismissed vide order dated 09.06.2014, hence this petition.
In this case counter affidavit and rejoinder affidavit have already been exchanged.
Main grievance of the petitioner is that no proper opportunity of hearing was given to the petitioner and copy of inquiry report was also not supplied to him. It is further stated that the Supply Clerk has got no authority to inspect the fair price shop of the petitioner, which is clear violation of principal of Rule 22 of Uttar Pradesh Essential Commodities Distribution Order 2004, as per the said order, the Food Inspector, the Competent authority, the Senior Supply Inspector or Supply Inspector are the competent authority, who can inspect the fair price shop, therefore, the Food Clerk is not a authority to inspect the shop. This apart, it is also stated that the inquiry report had not been supplied to the petitioner and no opportunity of hearing was given to him as provided in Government Order dated 29th July, 2004 and without giving proper opportunity of hearing and supplying the inquiry report, the licence of fair price shop of the petitioner was cancelled, which is violation of principal of natural justice.
To substantiate his argument a case law report in 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."
It is apparent from the record that the fair price shop of the petitioner was inspected by the Supply Clerk of Nanpara without any authority and on the basis of its inquiry report, the licence of fair price shop in question was first suspended and thereafter without giving copy of inquiry report and without giving opportunity of hearing to the petitioner, the licence of his fair price shop was cancelled.
In view of above fact and to my view, the action taken by the authority concerned is not in accordance with law, hence, order impugned dated 09.06.2014 and 07.07.2012 are liable to be quashed.
Accordingly, the writ petition is allowed. Order dated 09.06.2014 passed by the Additional Commissioner (Administration) Devi Patan Mandal, Gonda in Appeal No.304/67(Arif Khan versus State of U.P. & others) and order dated 03.07.2012 passed by Up Ziladhikari Nanpara, District - Bahraich are hereby quashed and the matter is remanded back to Sub-Divisional Magistrate, Nanpara to pass afresh order in this regard after supplying the copy of inquiry report and after giving proper opportunity of hearing to the petitioner as early as possible.
Order Date :- 23.10.2017
S. Kumar
