Allahabad High Court
Kailash Kumar vs State Of U.P. Thru. Secy. Food And ... on 9 May, 2022
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 19
Case :- WRIT - C No. - 1497 of 2022
Petitioner :- Kailash Kumar
Respondent :- State Of U.P. Thru. Secy. Food And Civil Supplies Lko. And Others
Counsel for Petitioner :- Satish Kumar Sharma
Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Bhatia,J.
Rejoinder affidavit is taken on record.
Heard learned counsel for the petitioner and Sri Indrajeet Shukla, learned Additional Chief Standing Counsel for the State.
The present petition has been filed challenging the order dated 29.08.2018 whereby fair price shop license of the petitioner was cancelled as well as the appellate order dated 05.02.2022 whereby the appeal preferred by the petitioner was dismissed.
The facts, in brief, are that the the petitioner is a fair price shop licensee and on account of a seizure which took place in respect of tractor carrying wheat and on the basis of complaint made by three or four persons, the petitioner was served a show cause notice (Annexure no.3). In the said show cause notice, it was alleged that on 22.05.2018 a tractor trolley carrying certain wheat-grain was seized. The said tractor was carrying 40-50 quitals of wheat-grain coupled with the said seizure, it was recorded that one Tej Ram, Neeru Singh, Sandeep, Munna etc. had deposed that they were not getting wheat-grain. It was also recorded that certain villagers have stated that they were not getting wheat by the petitioner. Based upon the said statements, A.D.M. formed an opinion that wheat as seized from the Trolley was being sent by the petitioner for it being sold in open market. The F.I.R. was also registered under Section 3/7 of the Essential Commodities Act and the petitioner was called upon to show cause as to why steps may not be taken for cancellation of fair price shop license. The petitioner by a detailed reply dated 02.08.2018 denied the allegation levelled in the show cause notice and also gave statement of various card holders to the effect that they had no grievance with regard to non supply of wheat. He also stated that he was being implicated at the instance of persons to whom he had political rivalry. Based upon reply given by the petitioner, an order came to be passed on 29.08.2018, canceling the fair price shop license. The said order records that Tehsildar, Sidhauli, District Sitapur in his enquiry report had mentioned about the seizure of trolley with wheat-grain. It also refers to the reply given by the petitioner to the show cause notice. However, while passing the order canceling the license, the same was passed mainly on the ground that on perusal of the Distribution Register there was certain discrepancy and based upon the said discrepancy, the fair price license of the petitioner was cancelled. Petitioner preferred an appeal which too was dismissed on 05.02.2022.
Learned counsel for the petitioner argues that the impugned orders in the petition are bad in law for more than one reason. He, firstly, argues that Tehsildar is not empowered to carry out any investigation in terms of U.P. Essential Commodities ( Regulation of Sale and Distribution Control) Order, 2016 (herein after referred to 'Control Order, 2016'). He also argues that the Tehsildar does not came within the purview "Designated Authority" as define under section 2(l) of the Control order, 2016. He further argues that even in the show cause notice served, there was neither any allegation that the petitioner had not maintained the records properly nor the petitioner was ever called to show cause in respect to the said allegation.
He relies upon the judgment of Hon'ble Supreme Court in the case of Oryx Fisheries Private Limited Vs. Union of India; (2010) 13 SCC 427, wherein it was emphasized that show cause notice should be clear and precise, and not a vague one.
He further argues that even otherwise the defence taken by the petitioner and the evidence adduced in support thereof was not even considered while passing the impugned orders. He argues that before appellate authority a specific plea with regard to lack of jurisdiction of the Tehsildar was raised but the same has not been considered. He lastly argues that the writ petition deserves to be allowed.
Learned Additional Chief Standing Counsel argues that although the specific assertion with regard to improper maintenance of the records was not levelled in the show cause notice, however, during the course of enquiry, these discrepancies were observed and thus, no fault can be found in the orders impugned and the writ petition deserves to be dismissed.
In the light of the arguments, as raised at Bar, considering the first submission that Tehsildar was not a designated authority, the contention of the learned counsel for the petitioner is liable to be accepted in view of the judgment dated 21.04.2022 of this Court in the case pf Amita Devi Vs. State of U.P. and another passed in Writ-C No.26269 of 2020 wherein this Court has considered the scope of the officers falling under the definition of designated authority as contained in Section 2(l) of the Control Order, 2016. In view thereof, I have no hesitation in holding that the Tehsildar has no jurisdiction of investigation.
The second submission of learned counsel for the petitioner is that show cause notice was vague, also merits acceptance inasmuch as the show cause notice was confined to the allegations that the wheat seized from the Trolley was allegedly supplied from the petitioner. There being no allegation that the records maintained by the petitioner were not properly maintained, the petitioner was not obliged to reply the same in the absence of any specific charge. The cancellation of the license was an improper exercise of powers and was clearly in violation of principle of natural justice. The order is further bad in law as it does not even refer to the evidence filed by the petitioner in support of his defence. The show cause notice was, thus, bad on all the above grounds. The petition deserves to be allowed.
The orders dated 29.08.2018 and 05.02.2022 impugned herein are set aside.
The petition is allowed.
No orders as to costs.
Order Date :- 9.5.2022
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