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Allahabad High Court · body

2009 DIGILAW 3096 (ALL)

GUN PRATAP SINGH v. STATE OF U. P.

2009-09-10

A.P.SAHI

body2009
JUDGMENT Hon’ble A.P. Sahi, J.—Heard learned counsel for the petitioner and the learned Standing Counsel. 2. The petitioner was a licensee of fair price shop at Village Raibhanpur, Nyaya Panchayat Patti Dayal Block and Tehsil Badlapur district Jaunpur. Certain complaints are alleged to have been made against the petitioner where after an inquiry was conducted and the petitioner’s licence was ultimately cancelled on 4.2.2008. The petitioner preferred an appeal under clause 28 of the U.P. Commodities Control Distribution Order, 2004 which appeal has also been dismissed by the Commissioner vide order dated 1.8.2008 against which the present writ petition has been preferred. 3. Learned counsel for the petitioner contends that the charges which were levelled against the petitioner were without any basis and it was only on account of certain oral allegations and local political rivalry that the petitioner’s fair price shop licence was cancelled. He contends that the findings recorded by the Sub Divisional Magistrate as affirmed by the Commissioner are based on no evidence and are perverse. He further contends that the explanation afforded by the petitioner, has been completely ignored and irrelevant factors have been taken into consideration. 4. Learned Standing Counsel on the other hand contends that the the petitioner had committed severe irregularities and findings recorded by the Sub Divisional Magistrate as well as by the Commissioner are founded on material evidence and there being no infirmity, the impugned order does not deserve interference under Article 226 of the Constitution. 5. One of the charges levelled against the petitioner is that he distributed the essential commodities to the villagers by adopting manipulated measurement techniques which ultimately proved that the petitioner had distributed lesser quantity of essential commodities than what was to be made available to the card holders. For example, it is alleged that the petitioner weighted 35 kilograms of food grains per head and upon verification it was found that it was only 30 kilograms. There was thus a deficiency of 5 kilograms of food grains per card. 6. Similarly in distribution of kerosene oil, the allegation is that the Can with which the measurement was carried out did not have a handle and, therefore, it resulted in measurement of lesser quantity of kerosene oil. It is alleged that by this contrivance, the petitioner used to measure only two litres instead of 3 litres of kerosene. 6. Similarly in distribution of kerosene oil, the allegation is that the Can with which the measurement was carried out did not have a handle and, therefore, it resulted in measurement of lesser quantity of kerosene oil. It is alleged that by this contrivance, the petitioner used to measure only two litres instead of 3 litres of kerosene. It is further alleged that the petitioner had not given any satisfactory explanation and the statements of the villagers that were recorded during the inquiry by the Tehsildar amply proved the charges against the petitioner. While passing the order of cancellation, the Sub Divisional Magistrate has also recorded the statement of 17 persons. Their statements were recorded in the open Court of the Tehsildar which sufficiently substantiated the allegations in respect of the charges made against the petitioner. 7. The petitioner came up with an explanation that the Lekhpal and other villagers had given their statements in favour of the petitioner and the aforesaid factors if taken into account, would clearly demonstrate that there have been no irregularities in distribution of the fair price commodities by the petitioner. It is further submitted that there is no evidence led to demonstrate as to how the commodities were measured less. 8. Learned counsel for the petitioner contends that the absence of a handle in the Can which was used for measuring kerosene oil, can in no way bring about deficiency in measurement, and the aforesaid charge deserves to be rejected. It has been further pointed out that not only this inspite of photstat copies of the documents filed in support of the explanation and the stock register duly verified having been produced, the Sub Divisional Magistrate has deliberately drawn a wrong conclusion. It has been further submitted that incorrect findings have been recorded by the Sub Divisional Magistrate. Learned counsel for the petitioner further contends that the Commissioner has also committed the same error as by the Sub Divisional Magistrate, therefore, the appellate order also deserves to be set aside. 9. Learned Standing Counsel on the other hand contends that the findings recorded by the Sub Divisional Magistrate are based on appraisal of documents and therefore it cannot be said that the order has been passed without going into the merits of the case and without considering the material on records. 9. Learned Standing Counsel on the other hand contends that the findings recorded by the Sub Divisional Magistrate are based on appraisal of documents and therefore it cannot be said that the order has been passed without going into the merits of the case and without considering the material on records. It is further contended that the appellate authority has also rightly passed the order. 10. It is peculiar that the absence of a handle in the Can used for measuring kerosene oil has been found to be the reason for shortage in measurement. It is not understood as to how the method adopted resulted in shortage of measurement. The aforesaid conclusion has been drawn by the Sub Divisional Magistrate and also by the Commissioner while affirming the order. The aforesaid finding being not supported by any evidence explaining such contrivance cannot be sustained in law. The report of the Tahsildar has been submitted before the Sub Divisional Magistrate along with the statement of 17 persons against the petitioner. No reasons have been however recorded by the Sub Divisional Magistrate to discard the statement made by the Lekhpal or those in favour of the petitioners. 11. Similarly the allegation about shortage in the measurement of wheat is uniform in respect of all the complaints. It is neither one gram less or more. The allegation is more or less in the nature of mass copying with similar mistakes in a Board Examination. The statement recorded says that one of the complainants had got it measured after delivery and found the wheat to be 30 Kg instead of 35 Kg. There is no evidence about the others except their bald allegations. They do not state as to when, how and where they got the wheat measured subsequently and whether the same was verified by any method or not. A mere bald allegation unsupported by any thing further would not substantiate a charge relating to physical verification of measurement which involves a definite activity about which there can be an objective assessment. Neither the Tehsildar or the S.D.M. have undertaken any pains to find out the same and have believed bald statements without any knowledge as to how the wheat was subsequently weighed and found less. 12. It is not the case of the State that the documents produced were fictitious or that the petitioner has refused to supply the originals. Neither the Tehsildar or the S.D.M. have undertaken any pains to find out the same and have believed bald statements without any knowledge as to how the wheat was subsequently weighed and found less. 12. It is not the case of the State that the documents produced were fictitious or that the petitioner has refused to supply the originals. In such a situation the order of the Sub Divisional Magistrate cannot be sustained on this ground as well. So far as the stock register having not been signed by the authorities are concerned, the same does not appear to be a charge in the show cause notice issued to the petitioner. The Sub Divisional Magistrate has recorded the said finding after having allegedly inspected the register. The petitioner has specified this ground as ground No. 13 in the memo of appeal alleging that the stock register had been duly signed by the competent authority and, therefore, the said finding of the Sub Divisional Magistrate is perverse. The learned Commissioner having noted the said submissions has failed to record any finding on the issue. In view of this the order of the Commissioner is equally erroneous. 13. Accordingly the orders impugned are unsustainable and are hereby quashed. The matter is remanded back to the S.D.M. to decide the matter afresh in accordance with law after verifying the evidence led on behalf of the petitioner preferably within a period of three months from the date of production of a certified copy of this order. 14. The licence of the petitioner had been cancelled on 4.2.2008.Some alternative arrangement must have been made during the pendency of this writ petition. In view of this the alternative arrangement so made shall be continued and the quashing of the impugned order shall not entitle the petitioner for the resumption of the licence and running of the fair price shop which shall be subject to the orders passed by the Sub Divisional Magistrate as directed herein above. 15. Writ petition is allowed. No order as to costs. ————