Allahabad High Court
Lal Mohammad vs State Of U.P. Thru Prin.Secy. Food ... on 9 May, 2022
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 19
Case :- WRIT - C No. - 29053 of 2021
Petitioner :- Lal Mohammad
Respondent :- State Of U.P. Thru Prin.Secy. Food And Civil Supplies Lko.Andors
Counsel for Petitioner :- Praveen Kumar Sharma,Dilip Kumar Pandey
Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Bhatia,J.
Heard learned Counsel for the petitioner and learned Additional Chief Standing Counsel.
The present petition has been filed challenging the order dated 26.05.2018 whereby the fair price shop license of the petitioner was cancelled as well as the order dated 17.02.2021 whereby the appeal preferred has been dismissed.
The facts in brief are that the petitioner was a fair price shop license holder. On the basis of inspection carried out on 20.05.2016, it was alleged against the petitioner that although none of the cardholders has made complaint, however, 200 liters of kerosene oil was not found in the shop in question and it was alleged that the same has been sold in the black market, for which an FIR was also lodged under Section 3/7 of the Essential Commodities Act. The show cause notice dated 25.05.2016 has been brought on record along with supplementary affidavit. The petitioner claims to have submitted reply to the said show cause notice denying the allegations levelled therein and mainly took a ground that the entire search has been carried out at the instance of political rivalry.
It is further stated that there is no complaint and the allegations levelled against the petitioner were already the basis of the criminal complaint/ FIR filed under Section 3/7 of the EC Act. The petitioner has also given the affidavits of certain cardholders who have deposed in favour of the contention of the petitioner. An order came to be passed on 22.03.2017 cancelling the license of the petitioner mainly on the ground that 200 liters of kerosene oil was found less at the time of inspection. The said order dated 22.03.2017 was challenged by the petitioner by preferring an appeal under Section 13(3) of the Control Order of 2016. In the said appeal, the appellate court found that the allegations contained against the petitioner were similar to the once which led to lodging of the FIR under Section 3/7 of the EC Act and placing reliance on the judgment of this Court in Writ Petition No.1766 of 2011 (Smt. Rajkumari Singh vs State of U.P.) proceeded to set aside the order dated 22.03.2017 and remanded the matter for fresh adjudication after giving opportunity of hearing to the petitioner.
In pursuance to the said remand, the defence of the petitioner was considered along with the report of the Inspector given on 21.03.2017. After the remand, the licensing authority visited at the place of the deponents of the affidavit who have deposed in favour of the petitioner. The licensing authority found that various depositions made in favour of the petitioner, however decided that none of the affidavits disclosed that the deponents were present at the time of counting of drum and proceeded to disbelieve the affidavits and passed a fresh order on 26.05.2018 (Annexure-2). The petitioner once again preferred appeal highlighting that the manner of decision taken by the licensing authority was not correct. The appellate authority also dismissed the appeal vide order dated 17.02.2021 upholding the order passed by the licensing authority. Both the said orders are challenged.
The Counsel for the petitioner argues that the sole allegation against the petitioner is that 200 liters of kerosene oil was found short at the time of inspection which was also the foundation of lodging the FIR under Section 3/7 of the EC Act. He argues that other than that, no complaint against the petitioner which is also fortified by the affidavits given by the various persons in favour of the petitioner. He also argues that the allegation of 200 liters of kerosene oil being less was also wrong, inasmuch as, the drum was under repair which fact has been specifically pleaded but not considered. In the light of the said arguments, the petition deserves to be allowed.
The learned Additional Chief Standing Counsel supports the orders impugned in the present writ petition and argues that once on inspection it is found that the goods which were to be available were not found, the natural consequence was the lodging of an FIR under Section 3/7 of the EC Act and for cancellation of the license.
Considering the submissions made at the bar and on perusal of the report, it is clear that the sole allegation against the petitioner was non-discovery of the kerosene oil to the extent of 200 liters at the time of inspection. The specific defence of the petitioner that the drum was under repair has neither been considered nor adverted to in the entire record. Even otherwise, the deponents of the affidavits have specifically stated in favour of the petitioner that they were satisfied with the working of the petitioner and merely because that they did not present at the time of inspection their version could not have been disbelieved. It is on record that the proceedings initiated under Section 3/7 of the EC Act has not been culminated, thus from the entire fact, it is clear that the basis on which the license has been cancelled is similar to the foundation as contained in the FIR against the petitioner. There being no other evidence by the State on record to come to the conclusion that the black marketing is being done by the petitioner as alleged in the show cause notice, the presumption drawn that merely because the stocks were not found, they would have black marketed has neither any legal nor factual basis.
In the light thereof, the impugned orders 26.05.2018 and 17.02.2021 are not sustainable and are accordingly set aside.
The writ petition stands allowed.
Order Date :- 9.5.2022
akverma
