Indal Singh vs State Of U.P. And Another
2023 Latest Caselaw 17830 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:142276
 
Court No. - 6
 

 
Case :- WRIT - C No. - 21486 of 2023
 

 
Petitioner :- Indal Singh
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- Vishal Tandon
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

Heard Mr. Vishal Tandon, learned counsel for the petitioner and Mr. Ratan Deep Mishra, learned Standing Counsel for the respondents-State.

This writ petition has been filed by the petitioner with a prayer to quash the order dated 05.06.2023 passed by the respondent no.2 in Appeal No.701/2023 (Computerized Case No. C202318000000701) (Indal Singh vs. State of U.P. and another) under Clause 13(1) of U.P. Essential Commodities (Regulation of sale and Distribution Control) Order, 2016 and further prayer to modify the aforesaid order dated 05.06.2023 and direct the respondent no.2 to decide the stay application as well as appeal within stipulated period.

Brief facts of the case are that the fair price shop license of the petitioner was suspended by Sub Divisional Officer, Tehsil-Kol vide order dated 24.01.2023 and show cause notice was issued to the petitioner to submit reply. A detailed reply was submitted by the petitioner. Subsequently, the second show cause notice was issued to the petitioner vide order dated 23.03.2023 to which reply was submitted on 11.04.2023. Thereafter, assessment of the aforesaid reply was conducted by the Area Rationing Officer, Kol, who himself had conducted preliminary enquiry. On the basis of the aforesaid assessment, without considering the reply of the petitioner and without giving opportunity of hearing, the fair price shop license was cancelled by order dated 29.05.2023. Aggrieved by the aforesaid order, appeal alongwith stay application has been filed before the Commissioner, Aligarh Division, Aligarh. By order dated 05.06.2023, the aforesaid appeal was admitted without passing any order on the stay application. Hence the present petition was filed.

Relying upon the Sub-clause 5 of Clause 13 of Uttar Pradesh Essential Commodities (Regulation of Sale and Distribution Control) Order (2016) (hereinafter referred to as "Control Order, 2016"), learned counsel for the petitioner submits that it was mandatory upon the Commissioner/Appellate Authority to decide the stay application and till the order passed in the stay application or final order in the appeal, the order under challenge was not to be given effect. He further submits that Sub-clause (7) of Clause 8 of the Control Order, 2016 provides mechanism for inquiry in case of irregularity of distribution by a fair price shop owner including the provision of suspension etc., which reads as under :-

"8. Operation of fair price shops-- (1)...

(7) The Competent Authority shall take prompt action in respect of violation of any condition of license including any irregularity committed by the fair price shop owner, which may include suspension or cancellation of the fair price shop owner's license.

An inquiry regarding irregularities in distribution by a fair price shop owner shall be conducted by the Designated officer or by the District Magistrate. After inquiry, if the license of fair price shop owner is suspended along with a show cause notice by the competent authority, then the reply/explanation of show cause notice by fair price shop owners will be examined by an officer atleast one rank above the inquiry officer. If the preliminary enquiry had been conducted by a district level officer, then the explanation by fair price shop owners shall be examined by another district level officer."

Accordingly to the aforesaid Clause, the explanation/reply of the petitioner has to be examined by an officer, who is at-least one rank above the inquiry officer, which has not been done in the present case as the same officer, who has conducted the preliminary enquiry has assessed the explanation/reply of the petitioner. The aforesaid fact has to be considered by the appellate authority while deciding the stay application, which has not been done in the present case. Hence the order impugned cannot be sustained in the eye of law.

Learned counsel for the petitioner has placed reliance upon the order of the Co-ordinate Bench of this Court dated 12.10.2020 passed in Misc. Single No.16441 of 2020 (Smt. Reeta Devi vs. State of U.P. Thru. Prin. Secy Food & Civil Supplies Lko. & Ors.) wherein after relying upon the case of Moolchand Yadav vs. Raja Buland Sugar Co. Ltd., Rampur and others reported in 1982 (3) SCC 484, the Co-ordinate Bench of this Court was pleased to stay the order of cancellation of license of fair price shop of the petitioner therein till final orders passed in the appeal. Therefore, he prays that the order impugned dated 05.06.2023 may be modified to that extent.

On the other hand, learned Standing Counsel submits that as per the proviso of Control Order 2016 itself, once the cancellation order is passed, fair price shop in question has to be attached to nearby fair price shop for convenience of the card holders and as per the said Control Order 2016, a fresh allotment has to be done. Subsequent allottee, in such case, has no right, in case, the appeal of the petitioner is finally allowed. Absurdity/illegality as argued by the counsel for the petitioner with respect to the fact that the same office has accessed the explanation/reply of the petitioner, has to be seen by the appellate authority and the Court sitting in the writ jurisdiction cannot sit in appeal. As regards regarding illegality in the impugned cancellation order dated 05.06.2023, the same cannot be looked into at this stage.

So far as the contention made by learned counsel for the petitioner regarding Sub-clause 5 of Clause 13 of the Control Order 2016, he submits that the aforesaid Clause has wrongly been interpreted as Sub-clause 5 of Clause 13, which clearly provides that the appellate authority may direct that the order under appeal shall not take effect for such period as the authority may consider necessary for giving a reasonable opportunity to the other party under sub-clause (4), meaning thereby that unless and until, the aggrieved party as stated in sub-clause (4) of Clause 13 is given opportunity, the appellate authority may pass the aforesaid order. In continuation, it has also been mentioned in the aforesaid Sub-clause 5 of Clause 13 of the Control Order 2016 that the order under challenge may not be given effect until disposal of the appeal, however, it is clearly mentioned that once an opportunity has been given to the other party, the order for not giving effect to the order under challenge, is not required. Learned counsel for the petitioner has placed reliance upon the judgment of Moolchand Yadav (supra), which is not applicable in the facts of the present case. Therefore, no interference is required by this Court in exercise of the powers under Section 226 of the Constitution of India.

At this stage, leaned counsel for the petitioner requests that a direction may be issued to the appellate authority to decide the stay application within stipulated period and till decision of the appeal, cancellation order may be kept in abeyance.

In view of the aforesaid, no useful purpose will be served to keep this writ petition pending and calling for a counter affidavit.

Considering the facts and circumstances of the case, without expressing any opinion on the merits of the case, this writ petition is finally disposed of with a direction to the respondent no.2/appellate authority to decide the stay application of the petitioner, in accordance with law, preferably, within a period of 15 days from today. It is further directed to the respondent no.2/appellate authority to decide the appeal of the petitioner, after giving opportunity of hearing to all the parties, by a reasoned and speaking order, in accordance with law, preferably, within a period of two months from the production of certified copy of this order, if there is no other legal impediment.

It is made clear that this Court has not examined the merits of the claim of the petitioner and the authority concerned shall apply its own mind strictly in accordance with law.

Order Date :- 18.7.2023

Jitendra/-