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2009 DIGILAW 1333 (ALL)

NABABUDDIN KHAN v. STATE OF U. P.

2009-04-13

RAJES KUMAR

body2009
JUDGMENT Honble Rajes Kumar, J.—Affidavit filed by the learned Standing Counsel be placed on record. 2. Heard Sri Amarjeet Singh, learned counsel appearing for the petitioner and Sri C.P. Mishra, learned Standing Counsel appearing for the respondents. 3. By means of the present writ petition, petitioner is challenging the order dated 24th February, 2006 passed by the Assistant Commissioner (Food), Meerut Division, Meerut in appeal No. 1 of 2005 filed by the petitioner against the order of the Sub-Divisional Magistrate, Jewar, Gautam Budh Nagar dated 26th September, 2005 by which the agreement of the fair price shop of the petitioner has been cancelled. 4. It appears that on the basis of the complaint, made by some of the villagers on 12.8.2005, show cause notice dated 30.8.2005 has been issued by the Sub-Divisional Magistrate, Jewar alleging four irregularities and asking the petitioner to give reply within three days failing which necessary action would be taken against him. Petitioner filed reply dated 3.9.2005 along with ten affidavits of the villagers and refuted the allegations made in the show cause notice. However, the Sub-Divisional Magistrate has not accepted the explanation of the petitioner, and vide order dated 26th September, 2005 cancelled the agreement of the petitioner. Being aggrieved by the said order, petitioner filed appeal, which has been dismissed. 5. Learned counsel for the petitioner submitted that in the show cause notice dated 30.8.2005, though it is mentioned that on the receipt of the complaint dated 12.8.2005 by the villagers an enquiry was made by the Regional Supply Officer in which alleged irregularities mentioned in the show cause notice were found, but no such enquiry has been made and the same is not on record. He submitted that in the cancellation order, though there is mention of suspension order No. 938 dated August, 2005, but on record there is no suspension order. He submitted that perusal of the record reveals that some enquiry report was submitted by the Inspector on 26th September, 2005 much after the show cause notice and after passing of the cancellation order. The said enquiry report is Annexure-1 to the supplementary rejoinder affidavit. He submitted that as per the Government order dated 29th July, 2004, it was mandatory to make preliminary enquiry on the receipt of the complaint before suspension of the agreement making allegation on the basis of such enquiry report why the agreement may not be cancelled. The said enquiry report is Annexure-1 to the supplementary rejoinder affidavit. He submitted that as per the Government order dated 29th July, 2004, it was mandatory to make preliminary enquiry on the receipt of the complaint before suspension of the agreement making allegation on the basis of such enquiry report why the agreement may not be cancelled. While in the present case, there is no enquiry report on record. Therefore, the cancellation order passed by the Sub-Divisional Magistrate is arbitrary and abuse of power and liable to be set aside. In support of his contention, he relied upon the Division Bench decisions in the case of Pramod Kumar v. State of U.P. and others, 2007 (1) EFR 159; M/s. Mahatma Gandhi Upbhokta Sahkari Samiti v. State of U.P. and others, 2001 (19) LCD 513 and the decision of learned Single Judge in the case of Rajpal Singh v. State of U.P., 2008 (26) LCD 891. 6. To verify the contention of the petitioner, record was summoned and District Supply Officer was required to be present in person. Today, Sri Santosh Niranjan, District Supply Officer is present along with the record. Record has been perused along with Sri C.P. Mishra, learned Standing Counsel and Sri Santosh Niranjan, District Supply Officer. It has been admitted by Sri C.P. Mishra, learned Standing Counsel and Sri Santosh Niranjan, District Supply Officer that there is no enquiry report on record prior to the issue of the show cause notice dated 30.8.2005. He submitted that there is no suspension order No. 938 dated August 2005 on record. He further submitted that it appears that the Inspector has subsequently given the enquiry report dated 26.9.2005, which is on record. However, he justified the cancellation order on the basis of the material referred in the order. 7. Having heard the learned counsel for the parties, I have gone through the record and have considered the rival submissions. 8. In the case of Dinesh Kumar v. State of U.P. and others, 2005 All CJ 1201 this Court has held the order of cancellation of the agreement of the fair price shop has a civil consequences and such order should be passed in accordance with principle of natural justice. 9. 8. In the case of Dinesh Kumar v. State of U.P. and others, 2005 All CJ 1201 this Court has held the order of cancellation of the agreement of the fair price shop has a civil consequences and such order should be passed in accordance with principle of natural justice. 9. In the case of Gulab Chandra Ram v. State of U.P. and others, 2009 (2) ADJ 521 this Court held as follows : "The above clause shows that in case a complaint is made against an allottee of a fair price shop, a preliminary enquiry is required to be held against the said allottee. In the preliminary enquiry if such irregularities are found to be prima facie established on the basis of which there is a possibility for cancellation of the allotment then the fair price shop agency will be suspended and simultaneously a show cause notice will be issued to the allottee as to why the allotment be not cancelled. The show cause notice to be issued to the allottee must contain the details of all the irregularities found in the preliminary enquiry regarding which the allottee is expected to give his reply.” 10. Circular dated 29th July, 2004 issued by the Principal Secretary to all the District Magistrates and the District Supply Officers of U.P. provides the complete procedure for suspension and the cancellation of the licenses. Clause 2 (i) provides that on the receipt of the complaint, the officer concerned may get the enquiry made and thereafter on prima facie establishment of gross irregularities, agreement can be suspended and show cause notice be issued that why the agreement may not be cancelled and if in the enquiry, it is found that irregularities are not of serious nature, the agreement may not be cancelled. 10. In the present case, in the show cause notice dated 30.8.2005, there is reference of enquiry being conducted through Regional Supply Officer, but no date of such enquiry report is mentioned. Sri C.P. Mishra, learned Standing Counsel as well as Sri Santosh Niranjan, District Supply Officer have informed that no such enquiry report prior to 30.8.2005 and before issue of show cause notice are available on record. Therefore, it is apparent that the show cause notice has been issued without any enquiry. Sri C.P. Mishra, learned Standing Counsel as well as Sri Santosh Niranjan, District Supply Officer have informed that no such enquiry report prior to 30.8.2005 and before issue of show cause notice are available on record. Therefore, it is apparent that the show cause notice has been issued without any enquiry. It also appears that though there is reference of suspension order No. 938 dated August, 2005 in the cancellation order dated 26th September, 2005. Such order is not available on record. It appears that to justify the show cause notice and the cancellation order, enquiry report dated 26th September, 2005 has been placed on record which has not been confronted to the petitioner at any stage. 11. In view of the above, I am of the view that the Sub-Divisional Magistrate, Jewar has not acted bonafidely in discharge of his official duties in accordance to law and just to make out a case of the cancellation, he proceeded arbitrarily. 12. On the facts and circumstances, the order dated 26th September, 2005 and order dated 24th February, 2006 cannot be sustained and are liable to be set aside and the matter is remanded back to the Sub-Divisional Magistrate, Jewar to pass afresh order in accordance to law. 13. In the result, writ petition is allowed. The order dated 26th September, 2005 passed by Sub Divisional Magistrate, Jewar, Gautam Budh Nagar and order dated 24th February, 2006 passed by the Assistant Commissioner (Food), Meerut Division, Meerut in appeal No. 1 of 2005 are hereby quashed. The petitioner is directed to file certified copy of the order within a period of two weeks and the Sub-Divisional Magistrate, Jewar is directed to pass fresh order after giving opportunity of hearing to the petitioner within a period of six weeks thereafter. 14. On the facts and circumstances, respondent is liable for costs which I assess at Rs. 10,000/- (Ten thousand), which shall be paid within one month. However, it will be open to petitioner to recover the amount of cost from the concerned Sub-Divisional Magistrate. ————