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2009 DIGILAW 177 (ALL)

SIYARAM v. STATE OF U. P.

2009-01-21

VINEET SARAN

body2009
JUDGMENT Honble Vineet Saran, J.—The brief facts of the present case are that the petitioner has been continuing to run a fair price shop since 1992. On the basis of some inspection conducted by the Task Force constituted by the District Magistrate, Rampur on 24.6.2006, upon finding certain irregularities, by an order dated 10.7.2006 the licence of the petitioner was placed under suspension. Thereafter, by an order dated 11.9.2006 passed by the respondent No. 3, the licence of the petitioner has been cancelled. Challenging the said order, the petitioner filed an appeal, which has been dismissed by the Commissioner, Moradabad Division, Moradabad on 30.4.2008. During the pendency of the appeal, the respondent No. 5 had been granted the licence on 18.5.2007. Aggrieved by the aforesaid orders dated 11.9.2006 and 30.4.2008 as well as order dated 18.5.2007, this writ petition has been filed. 2. I have heard Sri Prabhakar Awasthi, learned counsel for the petitioner as well as learned Standing Counsel appearing for the respondent No. 1 to 3 and Sri Anuj Kumar for the respondent No. 4 and Sri Sanjay Kumar for respondent No. 5. Time to file counter affidavit was granted. Respondent No. 5 has filed counter affidavit to which rejoinder affidavit has been filed. The State authorities have not filed counter affidavit despite time having been granted on several occasions. With consent of learned counsel for the parties, this writ petition is being finally disposed of at the admission stage. 3. The contention of the learned counsel for the petitioner is that the charges, on which the fair price licence of the petitioner has been cancelled, are absolutely vague and even the show-cause notice given alongwith the suspension order does not give any specific irregularity committed by the petitioner and the charges are only mentioned in vague and general terms. It is submitted that the reply of the petitioner has not been considered at the time of passing of the impugned orders and that the report of the Task Force could not have been made the basis for cancellation of the licence of the petitioner especially when it is nowhere disclosed as to who were the members of the Task Force and what was its report. It is contended that the grant of fresh licence in favour of the respondent No. 5 is totally unjustified, inasmuch as the appeal of the petitioner was pending when the fresh licence was granted and in case if the orders passed by the authorities below are set aside, the respondent No. 5 would not have any right to run the fair price shop. 4. Learned Standing Counsel has however submitted that the impugned order is perfectly justified as it has been passed on the basis of the findings given by the Task Force, which had raided the fair price shop of the petitioner. He has also submitted that the findings of fact recorded by the authorities below need not be interfered with under Article 226 of the Constitution of India. In support of his submission, he relies on the decisions rendered in the cases of Dharmendra Kumar v. State of U.P., 2008(6) ADJ 14 and Jawahar Prasad v. State of U.P., 2005(4) AWC 3169. 5. Sri Sanjay Kumar, learned counsel appearing for the respondent No. 5 has adopted the arguments advanced by the learned Standing Counsel and has prayed that the writ petition deserves to be dismissed and he be permitted to continue to run the fair price shop on the basis of the licence granted in his favour on 18.5.2007. 6. From a perusal of the communication dated 10.7.2006 whereby the licence of the petitioner was placed under suspension and he was required to submit his reply, it appears that the charges against the petitioner was as under : (1) That the petitioner keeps back the ration cards of the BPL and Antyodaya class card holders and does not return the same. (2) That the distribution of food articles and sugar was not being made to the BPL card holders. (3) The proper distribution of essential items was not being done to Antyodaya class card holders. (4) That the kerosene oil was distributed after a month or two, at the rate of Rs. 11/- per liter, which was higher than the scheduled rate. 7. In response thereto, the petitioner submitted his reply on 31.8.2006 wherein he has categorically denied the keeping back of any ration card and stated that no such ration card was found at the time of alleged inspection. 11/- per liter, which was higher than the scheduled rate. 7. In response thereto, the petitioner submitted his reply on 31.8.2006 wherein he has categorically denied the keeping back of any ration card and stated that no such ration card was found at the time of alleged inspection. He has also denied the allegations with regard to non-distribution of essential items to BPL and Antyodaya class card holders and it has also been categorically stated by him in his reply that the kerosene oil was distributed at the scheduled rate of Rs. 10/- per liter and there was no complaint by any of the card holders with regard to the distribution being made by him. 8. By means of the order dated 11.9.2006, whereby the licence of the petitioner has been cancelled, all that it states is that the petitioner has not produced any evidence in support of his case. On a perusal of the charges levelled against the petitioner, it is clear that the same were not specific but of general nature. The petitioner submitted his reply and in case if the respondent authorities were not satisfied with the reply of the petitioner, they could have called upon the petitioner to produce the relevant records with regard to distribution being made by him. Merely saying that the reply was not satisfactory or that no evidence was produced, would not be sufficient. 9. Normally, this Court does not interfere in the matter where the finding of fact is given by the authorities but the present case is different as no specific finding with regard to any particular irregularity committed by the petitioner with regard to distribution has been recorded by the authorities below. Merely saying that the distribution is not being done properly would not be sufficient for passing an order cancelling the licence of the petitioner. The valuable rights of the petitioner flow from the licence which has been given in his favour and in case the same is to be cancelled or withdrawn, there should be sufficient reason for the same. 10. In the case of Dharmendra Kumar (supra) relied by the learned counsel for the respondents, the authorities below had recorded the finding of fact with regard to the irregularity committed by the licensee, which included non-display of stock and rate board and the other such irregularities. 10. In the case of Dharmendra Kumar (supra) relied by the learned counsel for the respondents, the authorities below had recorded the finding of fact with regard to the irregularity committed by the licensee, which included non-display of stock and rate board and the other such irregularities. In the said case, notice was given to the licensee to produce the stock and sale register, which was not done so by the licensee. It was in such circumstances that the finding was recorded against the licensee, which was based on sufficient material and the Court refused to interfere. 11. In the case of Jawahar Prasad (supra), clear finding of fact with regard to the licensee carrying on black marketing as well as having committed specific irregularities in the distribution of essential commodities and fabricated the entries in the ration cards had been recorded by the authorities and it was in such circumstances that the Court had not interfere with the order of cancellation. 12. As has already been discussed above, in the present case, the charges against the petitioner were absolutely vague. The reply submitted by the petitioner was not considered while passing the orders, either by the Sub-Divisional Officer or by the appellate authority and merely saying that there were irregularities, without specifying any kind of irregularity and without there being any evidence having been called for from the petitioner, would not be a ground for cancelling the licence of the petitioner. As such, the orders dated 11.9.2006 and 30.4.2008 passed by the Sub-Divisional Magistrate and the Commissioner respectively deserve to be set aside. 13. Accordingly, this writ petition stands allowed. The order dated 11.9.2006 and 30.4.2008 passed by the Sub-Divisional Magistrate and the Commissioner respectively are set aside. The order dated 18.5.2007 granting the licence to the respondent No. 5, which was because of the licence of the petitioner had been cancelled, would automatically go as after the restoration of the licence of the petitioner, he would be entitled to run the fair price shop, and thus there would be no vacancy. This view is supported by a Division Bench judgment of this Court in the case of Sri Pal Yadav v. State of U.P., 2008(10) ADJ 718 (DB). Accordingly, the said order dated 18.5.2007 is also quashed. 14. No order as to costs. ————