Allahabad High Court
Ram Kewal vs State Of U.P. And 4 Others on 11 April, 2023
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 6
Case :- WRIT - C No. - 11040 of 2023
Petitioner :- Ram Kewal
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Ashish Agrawal,Ashutosh Pandey
Counsel for Respondent :- C.S.C.,Anand Tiwari,Pankaj Kumar Gupta
Hon'ble Pankaj Bhatia,J.
The present petition has been filed challenging the order dated 06.03.2023, insofar as it restores the suspension, whereby the fair price shop of the petitioner was suspended in terms of the order dated 25.04.2022.
The submission of the Counsel for the petitioner is that on the basis of a complaint made, a preliminary inquiry was got conducted by the Nayab Tehsildar and the Lekhpal and based upon the preliminary inquiry report, an order of suspension came to be passed against the petitioner on 25.04.20222. In the said suspension order, allegations were levelled against the petitioner and he was called upon to file a reply. The petitioner filed reply to the suspension-cum-show cause notice dated 25.04.2022, which led to passing of a cancellation order against the petitioner. The petitioner challenged the cancellation order by preferring an appeal under Section 13(1) of The Uttar Pradesh Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016. The said appeal came to be allowed by means of the order dated 26.09.2022.
It is argued that during the pendency of the appeal, a caveat was filed by the respondent no.5 complainant, however, in the said order, no hearing was given to the respondent no.5, as such, the respondent no.5 challenged the order dated 26.09.2022 by filing Writ-C No.31056 of 2022 (Yogendra Prasad vs State of U.P. and others). The said writ petition was came to be allowed by means of the judgment dated 30.11.2022. This Court while deciding the said writ petition had places reliance on the judgment of the Hon'ble Supreme Court in the case of Ram Kumar vs State of U.P. and others; 2022 (11) ADJ 229 (SC) and quashed the appellate order dated 26.09.2022 and remanded the matter before the appellate authority for deciding the same afresh after giving opportunity of hearing to the respondent no.5 herein.
In terms of the directions given by this Court on 30.11.2022, a fresh order came to be passed on 06.03.2023 whereby the matter was once again remanded to the adjudicating authority. While passing the order, the appellate authority was of the view that the manner in which the proceedings have been initiated against the petitioner leading to suspension then to dismissal of the license of the shop are contrary to the mandate of Government Order dated 05.08.2019 and liberty was granted to the licensing authority to pass fresh order after complying with the mandatory requirement of Government Order dated 05.08.2019. While remanding the matter, the appellate authority revived the suspension order dated 25.04.2022. The said part of the remand order is under challenge before this Court.
The contention of the Counsel for the petitioner is that in terms of the provisions of The Uttar Pradesh Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016 as well as the Government Order dated 05.08.2019, it was incumbent that the proceedings after suspension should be culminated and decided finally within a period of two months. He argues that the entire proceedings including the suspension are based upon the report of the Nayab Tehsildar and the Lekhpal, who are not the officers designated as defined under Rule 2(l) of the Control Order, 2016, thus, in the present case, there is no report as against the petitioner till date by an officer who is competent to pass an order in terms of the Control Order or the Government Order dated 05.08.2019.
The Counsel for the petitioner argues that once the appellate authority is convinced that the order of cancellation was passed de hors the Government Order dated 05.08.2019, the appellate authority erred in law reviving the suspension order which is again de hors the law.
Sri Rakesh Kumar appearing on behalf of the respondent no.5 along with Sri Anand Tiwari tries to justify the order impugned by arguing that the complaints were made by the villagers which were duly supported by their affidavits; and the Nayab Tehsildar as well as the Lekhpal in an open meeting heard the grievance of the villagers and based upon which, the proceedings for suspension and thereafter cancellation was initiated. He further argues that after the decision in the first round i.e. 26.09.2022, the respondent no.5 was allotted the shop in question.
Considering the submissions made at the bar, it is clear that the suspension has continued for a period of more than two months which is against the spirit of the Control Order, 2016 as well as the Government Order dated 05.08.2019, there is no material in the form of report of persons authorised, against the petitioner as of now so as to continue the suspension as directed vide order dated 06.03.2023. Once the appellate authority formed a view that the proceedings of cancellation was contrary to the guidelines laid down in the Government Order dated 05.08.2019, the appellate authority had nothing on record to justify the suspension and to continue a suspension during the period of remand, thus, finding the narration given by the appellate authority in its order dated 06.03.2023 without any basis insofar as it permits continuation of suspension, cannot be justified and are set aside.
It is further directed that the licensing authority shall conclude the proceedings in accordance with law and as per the directions contained in the order dated 06.03.2023 with all expedition preferably within a period of three months from the date of production of a certified copy of this order. While doing so, the respondent no.5 shall also be given an opportunity of hearing.
In the event, the license is cancelled, the petitioner would be at liberty to make such steps as may be advised in law, however, in that scenario, the respondent no.5 shall acquire a right of allotment during the pendency of the proceedings that may be initiated by the petitioner, in the event, the licensing authority decides against the petitioner.
In the event the licensing authority decided in favour of the petitioner, he shall be permitted to continue.
The writ petition stands allowed in terms aforesaid.
Order Date :- 11.4.2023
akverma
