Allahabad High Court
Rakesh Kumar vs State Of U.P.Thru Superintendent ... on 2 August, 2021
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 6
Case :- MISC. SINGLE No. - 35639 of 2019
Petitioner :- Rakesh Kumar
Respondent :- State Of U.P.Thru Superintendent Of Police L.Kheri & Ors.
Counsel for Petitioner :- Suresh Chand Rathour
Counsel for Respondent :- C.S.C.
Hon'ble Mrs. Sangeeta Chandra,J.
(1) Heard the learned counsel for the parties and perused the record.
(2) This petition has been filed by the petitioner challenging the order dated 05.04.2005 by which the Fair Price Shop License of the petitioner has been cancelled by the Licensing Authority and the order dated 29.11.2019 passed by the Appellate Authority rejecting his Appeal.
(3) It is the case of the petitioner that he was granted the Fair Price Shop License of Village Panchayat Lakhanpur Gulchaura, Tehsil Sadar, District Kheri, and no complaint had been made against the distribution of essential commodities by the petitioner by any of the card holders. A First Information Report was lodged by the Food Inspector under Sections 420/466/409/467/468 /471/477/477A/120-B/202 I.P.C. and Sections 13 (1) (d) (2) (3) of the Prevention of Corruption Act on 24.12.2004 and without conducting any independent inquiry, thereafter, the Licensing Authority suspended and cancelled the license of the petitioner by the order dated 05.04.2005 only on the ground that the F.I.R. was lodged against him. Had the Licensing Authority issued Show Cause Notice to the petitioner, he would have informed the Licensing Authority that the final report had been submitted in Case Crime No.199 of 2004. The petitioner being aggrieved by the order of cancellation filed an Appeal, the Appeal was also rejected arbitrarily, therefore, the need arose to file this writ petition.
(4) Learned counsel for the petitioner has placed reliance upon the Full Bench decision of this Court rendered in the case of Bajrangi Tiwari wherein judgments rendered in Two Division Bench cases, in Smt. Raj Kumari and in the case of Ranjeet Singh, were referred to the Larger Bench, on an apparent difference of opinion with regard to the law settled regarding suspension and cancellation of Fair Price Shop License on the ground that the F.I.R. has been lodged.
(5) A perusal of the Paragraphs-12 and 14 of the judgment rendered by the Full Bench on 26.10.1979 shows that in case F.I.R. is lodged and a proceedings under Section 3/7 of the Essential Commodities Act is initiated, the Licensing Authority has to take into account the conduct alleged on behalf of the Licensee and whether such conduct warrants suspension of Fair Price Shop License and thereafter cancellation. The discretion that has been vested in the Licensing Authority should be exercised in a judicious manner in accordance with the Rules applicable for such distribution of essential commodities and in terms of the contract entered into between the Licensee and the Licensing Authority. An independent evaluation has to be made with regard whether licensee deserves his license to be suspended or cancelled, on account of being accused of the offences as mentioned in the F.I.R. In the case of the petitioner, he has not been issued any Show Cause Notice after lodging of the F.I.R., or even after suspension of his license, to enable an independent enquiry to be conducted by the Licensing Authority with regard to irregularities in distribution of essential commodities, if any.
(6) Learned Standing Counsel on the basis of instructions, which are not part of the counter affidavit says that eligibility criteria for grant of Fair Price Shop License includes a condition that the allottee should not be involved in any criminal case before grant of such license and that the petitioner was the accused in a criminal case lodged in 2004.
(7) This Court has perused the order of cancellation of Fair Price Shop License dated 05.04.2005. There is no mention at all therein of any Show Cause Notice being issued to the petitioner in pursuance of the F.I.R. lodged on 24.12.2004 in Case Crime No.199/2004. There is no detailed mention of the circumstances reading to the lodging of the F.I.R. to enable this Court to apply its mind to the entire facts of the case. The order impugned simply says that since in the Paragraph-10-B of the Government Order No.215/29-6- 2002-162-Saamanya-2001 issued from Food and Civil Supply Department on 17.08.2002, it has been mentioned that the reputation of the Licensee should be clear and Paragraph-10D of the same Circular says that no criminal case should have been registered against the Licensee, the licensee does not deserve to be continued. Thereafter, the Licensing Authority has simply cancelled the License of the petitioner.
(8) The petitioner had approached the Appellate Authority in Appeal saying that no opportunity of hearing was given to him. The Appellate Authority also did not appreciate that some kind of opportunity should have been given to the Licensee to explain his conduct. The Appellate Authority was also informed that in Case Crime No.4/2013 arising out of Case Crime No.199/2004 or the Charge-sheet had been filed before the Special Judge, C.B.I., Lucknow, in which the petitioner has not been made an accused by the Investigating Officer. Such fact has also been ignored by the Appellate Authority.
(9) Having perused the orders impugned dated 05.04.2005 and 29.11.2019 this Court finds that both the orders have been passed without application of mind independently to the facts of the case, to adjudicate the culpability of the petitioner leading to a satisfaction by the Licensing Authority that he does not deserve to continue as a Licensee.
(10) The impugned orders are set aside. The license of the petitioner is restored leaving it open to the Licensing Authority to conduct afresh enquiry against the petitioner on the basis of irregularities, if any found in his distribution or on charges of black-marketing etc. which had led to the filing of the F.I.R. in Case Crime No.199 of 2004. After conduct of such enquiry, the statement of villagers and other concerned be recorded, and Show Cause Notice be issued to the petitioner alongwith copy of the said Enquiry Report, and after receipt of reply of the petitioner appropriate orders be passed by the Licensing Authority.
(11) The writ petition stands allowed to this extent.
Order Date :- 2.8.2021
PAL
