Smt. Manju Devi vs State Of U.P. And 2 Others
2018 Latest Caselaw 2193 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									        A.F.R.
 
Court No. - 2
 

 
Case :- WRIT - C No. - 29150 of 2018
 

 
Petitioner :- Smt. Manju Devi
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Upendra Upadhyay
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Neeraj Tiwari,J.

Heard learned counsel for the petitioner and learned Standing Counsel appearing for the State-respondents.

Learned Standing Counsel has raised preliminary objection with regard to the maintainability of the writ petition on the ground of alternative remedy. It is stated that there is statutory alternative remedy to file appeal before Divisional Commissioner.

Learned counsel for the petitioner contends that the impugned order has been passed by respondent No. 2, Sub-Divisional Magistrate, Aligarh without application of mind and without considering the reply as it is based on office report. In support thereof, he has relied upon Paragraph No. 8 of the judgment of this Court in the matter of Mahendra Singh Vs. State of U.P. and another 2016 (8) ADJ 732 which is quoted hereinbelow:-

"In my opinion non consideration of the petitioner's reply in respect of the charges levelled against him amounts to denial of effective opportunity of hearing which further amounts to breach of principle of natural justice. Therefore, the writ petition is being entertained in view of the law laid down by the Apex Court in Whirlpool Corporation vs. Registrar of Trade Marks (1998 (8) SCC 1)."

I have perused the impugned order dated 19.06.2018 passed by respondent No. 2, Sub Divisional Magistrate, Atrauli, Aligarh and also the judgment relied by learned counsel for the petitioner.

I am of the view that contention of petitioner have substance, therefore, this writ petition is entertained without dismissing it on the ground of alternative remedy. Even otherwise, the Apex Court has held on many occasions that the alternative remedy is not the absolute bar.

Brief facts of the cares are that petitioner was a fair price shop agent of village Maupur Bahadurpur, Block Gangeeri, Tehsil Atrauli, District Aligarh. A complaint was made against the petitioner. Supply Inspector visited the village on 15.03.2018 and conducted preliminary inquiry on the basis of allegations of 27 villagers/card holders. Relying upon the inquiry report, licence of petitioner was suspended by Sub Divisional Magistrate, Atrauli vide order dated 23.03.2018.

At this stage, petitioner preferred Writ-C No. 13636 of 2018 (Smt. Manju Devi Vs. State of U.P. and 2 others) which was disposed of vide order dated 16.04.2018 with a direction to respondent No. 2 to decide the matter within six weeks from the date of submission of certified copy in accordance with law.

Petitioner had submitted a detailed reply of the suspension order dated 23.03.2018 along with certified copy of the order of Court on 10.05.2018 before respondent No. 2. On the application of petitioner, Sub Divisional Magistrate had directed the Supply Inspector to submit before him the office report along with the file. Petitioner has sent a reminder dated 04.06.2018 before Sub Divisional Magistrate along with certified copy of the order. Thereafter, it appears that Supply Inspector has submitted his report as earlier directed by Sub Divisional Magistrate and on the basis of report submitted by Supply Inspector, impugned order dated 19.06.2018 was passed.

Learned counsel for the petitioner has contended that his reply has not been considered and order has been passed absolutely without application of mind and it is totally based upon the office report submitted by Supply Inspector. It is further stated that any order passed without application of mind is directly in contravention with the law laid down of this Court in different matters. In support thereof, he has relied the judgment of this Court in Writ-C No. 31720 of 2016 (Ram Ujagar Vs. State of U.P. and 3 others), Writ-C No. 41886 of 2016 (Dharmendra Gupta Vs. State of U.P. and 2 others) and Mahendra Singh vs. State of U.P. and another 2016(8) ADJ 732 decided on 5.8.2016.

Learned counsel for the petitioner has further contended that aprat from merit, the order is liable to be quashed only on the ground that it has been passed on the basis of office report.

Learned Standing Counsel has submitted that though impugned order is based upon the office report, but Sub Division Magistrate after considering the same and after full application of mind has passed this order, therefore, there is no illegality in the order.

I have perused the impugned order dated 19.06.2018 passed by Sub Divisional Magistrate having total five paragraphs. First paragraph of the order is the reference of the matter, second and third is the explanation submitted by the petitioner and the fourth paragraph is the office report and the last paragraph is the conlcusion of respondent No. 2 cancelling the licence of petitioner. Relevant fourth and fifth paragraphs are being quoted below:-

"dk;ky;Z fVIi.kh%& ekSds ij tkWp ds le; dkMZ/kkjdksa }kjk fn;s x;s c;kuksa ls Li"V gS Jherh eatw nsoh] fuyfEcr mfpr nj foØsrk }kjk jk"Vªh; [kk| lqj{kk vf/kfu;e ds vUrxZr xsgw¡@pkoy dk forj.k ;wfuV ds fglkc ls dkMZ/kkjdksa esa ugh fd;k tk jgk gS o feV~Vh rsy dk forj.k izR;sd ekg ugh fd;k tkuk rFkk dkMZ/kkjdksa ds vHknz O;ogkj fd;k tkrk gSA jk"Vªh; [kk| lqj{kk vf/kfu;e ds vUrxZr izkIr [kk|ku o fe0rsy dk dkMZ/[email protected];ksa esa forj.k u dj nqdku vuqcU/k i= dh 'krksZa ,oa vuqlwfpr oLrq forj.k vkns'k ds izkfo/kkuksa dh vogsyuk dh xbZ gS rFkk foØsrk }kjk vius Li"Vhdj.k esa ek= mPp vf/kdkfj;ksa dks Hkzfer djus dk vlQy iz;kl fd;k x;k gSA Jherh eatw nsoh] mfpr nj foØsrk }kjk izLrqr Li"Vhdj.k dk ijh{k.k fd;k x;k tks iw.kZr% lUrks"ktud ugha ik;k x;kA foØsrk us vius i{k esa dksbZ 'kiFki=ksa ds vfrfjDr vU; dksbZ lk{; vFkok izek.k i= izLrqr ugha fd;k gSA vr,o Jherh eatw nsoh] fuyfEcr mfpr nj foØsrk] xzkelHkk eÅiqj cgknqjiqj] fodkl [k.M xaxhjh rglhy vrjkSyh }kjk vko';d oLrqvksa ds forj.k esa xaHkhj izdkj dh vfu;ferrk;sa cjrh x;h gSa] ftlds fy;s og nks"kh gSa] ftlds fy;s mudk vuqcU/k i= tufgr esa cuk;s j[kuk mfpr izrhr ugha gSA

vr% ftykf/kdkjh egksn;] vyhx<+ ds vuqeksnu fnukad 18-06-2018 ds vuqikyu Jherh eUtw nsoh] fuyfEcr mfpr nj foØsrk] xzkelHkk eÅiqj cgknqjiqj] fodkl [k.M xaxhjh dk vuqcU/k i= n.M Lo:i tek leLr izfrHkwfr /kujkf'k :0 [email protected]& ¼ikWp gtkj½ 'kklu ds i{k esa tCr djrs gq;s ,rn~ }kjk rRdky izHkko ls fujLr fd;k tkrk gSA

;g vkns'k rRdky izHkkoh gksxsaA

(yfyr dqekj)

mi ftykf/kdkjh

vrjkSyh

By the perusal of order, it is absolutely clear that only relying upon the office note, impugned order has been passed cancelling the fair price shop licence of the petitioner. In complete order, there is no consideration of reply submitted by the petitioner nor any individual finding is given by the respondent No. 2, but directly the licence has been cancelled on the basis of office report.

I have also gone through the judgment relied upon by learned counsel for the petitioner in Writ- C No. 31720 of 2016 ( Ram Ujagar Vs. State of U.P. and 3 others) decided on 03.08.2016, the writ petition was allowed and the order was set aside only on the ground which is quoted below:-

"It is settled that once the authority is empowered to exercise quasi-judicial power then that power has to be exercised in judicial way by passing the reasoned speaking order after considering the material available on record independently and he cannot depend his decision upon the assessment made by any other authority. The report/assessment of the other authority may have persuasive value but so far as passing of the order on merit is concerned that cannot be made sole basis unless the authority which is empowered under the statute has applied his own mind. Here in this case, the authority concerned has not at all applied his own mind to the charges levelled against the petitioner while considering the explanation submitted by him and the other materials available on record, therefore there is inherent lacking in the decision making process. Hence, the order of cancellation of agreement cannot be sustained in the eye of law. Therefore the impugned order dated 18.6.2016 passed by the Sub-Divisional Officer, Tehsil Itwa, District Siddharthanagar cancelling the agreement of the petitioner to run fair price shop is hereby quashed. The writ petition succeeds and is allowed. The matter is remitted back before the Sub-Divisional Officer to pass a fresh order after discussing each and every charge separately in consonance with the reply/explanation given by the petitioner by recording his own finding upon each and every charge levelled against the petitioner expeditiously preferably within a period of three months from the date of receipt of certified copy of the order of this Court."

Again in Writ-C No. 41886 of 2016 ( Dharmendra Gupta Vs. State of U.P. and 2 others) decided on 27.09.2016, and the Court had again taken the same view and allowed the writ petition by quashing the impugned order and the relevant paragraph is quoted below:-

"The averments made in the affidavit of the SDO clearly establishes that the impugned order was not prepared by him and was simply signed by him. He also admits that the inquiry report on the basis of which the aforesaid order has been passed was not supplied to the petitioner.

..........................

A copy of this order is directed to be sent to the Chief Secretary to the State of U.P., for issuing strict directions to all officers and authorities exercising quasi judicial powers to pass orders themselves and not to depend upon their drafting by the subordinate staff as any such action results in vitiating the order."

In the matter of Mahendra Singh (Supra), apart from holding this fact that the petition is maintainable even without sending it to Appellate Authority, the Court has also given a detailed finding that the order must be passed after recording reason and in absence of any such reason, order is liable to be quashed. The relevant paragraph of the judgment is quoted below:-

"14. From perusal of the aforesaid order it is also apparent on the face of the record that the Sub Divisional Officer has not recorded any reason for prima facie satisfaction for cancellation of the agreement of the petitioner to run the fair price shop, therefore this kind of order will also fall in the category of cryptic order which cannot be sustained in the eye of law in view of the law laid down by this Court in the case of Mohammad Hanif and others Vs. State of U.P. and others, 2013 (120) RD 99, which is based upon the law laid down by the Apex Court in Sant Lal Gupta and others vs. Modern Cooperative Group Housing Society Limited and others, (2010) 13 SCC 336 wherein the Hon'ble Apex Court has observed as under:-

"27.....The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/ unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected."

So far as the present case is concerned, it is absolutely clear that respondent No. 2 has passed the order without application of mind solely relying upon the office report given by Supply Inspector, therefore, order is bad in law and cannot be sustained. In fact, it is required on the part of Sub Divisional Magistrate to apply his own mind and record his finding with regard to the explanation given by the petitioner instead of banking upon the office note, but everything is lacking here. Therefore, considering the facts and circumstances of the case as well as law laid down by the Court, impugned order dated 19.06.2018 is hereby quashed and the matter is remitted back to respondent No.2, Sub Divisional Magistrate, Atrauli, Aligarh to pass a fresh order strictly in accordance with law, expeditiously preferably within a period of one month from the date of production of certified copy of this order.

The writ petition succeeds and is allowed.

Date :- 28.8.2018

Sartaj