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Allahabad High Court · body

2009 DIGILAW 252 (ALL)

PHOOL CHAND YADAV v. STATE OF U P

2009-01-23

RAN VIJAI SINGH

body2009
RAN VIJAI SINGH, J. This writ petition has been filed for issuing a writ of certiorari quashing the orders dated 19. 1. 2005 and 12. 1. 2006 passed by the Up-Zila Adhikari, Sadar, Azamgarh and Commissioner Azamgah Division Azamgarh (Respondents no. 3 and 2 ). Vide order dated 19. 1. 2005, the respondent no. 3 has cancelled the agreement to run the fair price shop of the petitioner and by the subsequent order dated 12. 1. 2006 the petitioners appeal against the order of cancellation was dismissed by the respondent no. 2. 2. The petitioner happens to be a fair price shop dealer appointed under an agreement executed between the petitioner on the one side and the collector on the other side. The agreement of the petitioner was suspended on 08. 11. 2004 on the ground that the petitioner has been distributing the scheduled commodities to the below poverty line card holders (in short B. P. L. card holders) on excessive price. 3. The petitioner was served with a show cause notice. A reply to the show cause notice was filed by the petitioner on 29. 12. 2004 stating therein that the petitioner was forced by the authorities to make a signature on the blank papers with respect to the return of excess amount charged by him from the B. P. L. card holders. He has also stated in his objection that the Supply Inspector Sri Satish Chandra Singh has been demanding Rs. 1000/- per month as a bribe and when the petitioner has not paid the same he became angry and his anger emerged in the shape of suspension order. 4. It is also worthwhile to mention that 18 B. P. L. card holders have filed an affidavit before the Sub Divisional Officer Azamgarh stating therein that no excessive price has been charged by the fair price shop dealer and distribution of scheduled commodities have been made on the price fixed by the Government. In his submissions the suspension order was unsustainable in the eye of law. 5. The Sub Divisional Officer Azamgarh thereafter cancelled the agreement of the petitioner on 19. 1. 2005. In his submissions the suspension order was unsustainable in the eye of law. 5. The Sub Divisional Officer Azamgarh thereafter cancelled the agreement of the petitioner on 19. 1. 2005. From the perusal of the order it transpires that the Sub Divisional Officer did not consider the petitioners objection to the show cause notice and the affidavits filed by the B. P. L. card holders and has passed the cancellation order on the basis that earlier before task force the petitioner has made signature on the papers containing the proof that he has returned the excess amount charged by him to the B. P. L. card holders. 6. Aggrieved from this order the petitioner has filed an appeal before the Divisional Commissioner, Azamgarh and the Divisional Commissioner too without considering the relevant materials available on record and placing reliance on the report of the task force has dismissed the petitioners appeal. 7. Sri Sanjay Kumar Srivastava, learned counsel for the petitioner has submitted before the court that neither the Sub Divisional Officer nor the Commissioner has afforded a reasonable opportunity of hearing to the petitioner. He has also submitted that the impugned orders suffers from non consideration of the relevant materials i. e. , the petitioners objection the show cause notice and the affidavit filed by the B. P. L. card holders. 8. I have heard learned counsel for the petitioner, learned Standing Counsel for the State respondents and counsel for Gaon Sabha. 9. From the perusal of both the orders i. e. , the order passed by Sub Divisional Officer Azamgarh cancelling the petitioners agreement to run the fair price shop and the order of the Commissioner Azamgarh on petitioners appeal, it transpires that neither the reply of the petitioner to the show cause notice nor the affidavits filed by the B. P. L. card holders before the Sub Divisional Officer Azamgarh containing this fact that they are being supplied scheduled commodities on the fixed price by the Government have been properly considered and the orders have been passed on the basis of the report of task force. In case decision was to be taken only on the basis of the report of task force then there was no occasion to serve with a show cause notice and if the opportunity was offered then it would have been a real opportunity. In case decision was to be taken only on the basis of the report of task force then there was no occasion to serve with a show cause notice and if the opportunity was offered then it would have been a real opportunity. The opportunity is offered to a person to have his version on the charge and if the version of the person has come then it has to be considered and due weight should be given to the reply and thereafter decision should be taken considering the version of both sides. Mere referring the filing of affidavits without discussing its contents while arriving at the final conclusion is unsustainable in the eye of law. In not doing so decision making process is vitiated. It is well settled that a decision reached without proper-self- direction or in ignorance of relevant material on record, detracts from a decision in the eye of law and is termed as perverse. Such a decision impugning upon civil rights is open to judicial review under Article 226 of the constitution in that the error committed permeates and vitiates the decision-making-process itself. 10. Otherwise also I am of the view that the impugned orders suffers from non consideration of the relevant materials available on the record. The Apex Court in the case of Garrison Engineer (Utility) v. Narinder Singh (2007) 11 SCC 35 has observed as under:- Para 6: From a perusal of the orders of the Labour Court and the High Court, it is noticed that the factual position has not been analysed in detail and an abrupt conclusion has been arrived at. Additionally, the legal issue regarding maintainability of the reference was not considered. Right from the beginning of the proceedings before the Labour Court and in the High Court, the appellant had taken specific plea that the Act was not applicable to it and it was not an industry. Unfortunately, as noted above, neither the Labour Court nor the High Court dealt with this issue. Para 7: Above being the position, we set aside the orders of the Labour Court and the High Court and remit the matter to the Labour Court to decide the objection raised by the appellant about the maintainability of the proceedings under the Act, founded on the claim that it is not an industry. Para 7: Above being the position, we set aside the orders of the Labour Court and the High Court and remit the matter to the Labour Court to decide the objection raised by the appellant about the maintainability of the proceedings under the Act, founded on the claim that it is not an industry. The other factual aspects shall also be considered on evidence being led by the parties. 11. In the case of Narinder Singh v. State of Haryana (2006)8 SCC 33 , Kusheshwar Prasad Singh v. State of Bihar (2007) 11 SCC 447 and Arun Kumar v. State of Bihar 2008 (3) SCC 203 same view has been reiterated by the Apex Court. 12. In view of the settled position of law about the non consideration of the relevant material available on record I am of the opinion that the impugned orders dated19. 01. 2005 and 12. 01. 2006 passed by respondents no. 2 and 3 respectively are illegal, arbitrary and deserves to be quashed. The writ petition succeeds and is allowed. The impugned order dated 19. 1. 2005 and 12. 01. 2006 are hereby quashed. The matter is remanded back before the Sub Divisional Officer,azamgarh to pass an appropriate order after considering the relevant materials available on record particularly reply of the petitioner to the show cause notice and the affidavits filed by B. P. L. card holders containing the facts that the scheduled commodities have been distributed to them on the price fixed by the Government. .