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2012 DIGILAW 120 (ALL)

SABHAPATI PANDEY v. STATE OF U. P.

2012-01-12

PANKAJ NAQVI

body2012
JUDGMENT Hon’ble Pankaj Naqvi, J.—The petitioner a fair price shop dealer challenges the order dated 15.7.2009 of respondent No. 3 whereby his fair price licence has been cancelled and the order dated 27.11.2009 whereby an appeal preferred by him has been dismissed by respondent No. 2. 2.The petitioner’s fair price licence was sought to be suspended by an order dated 22.11.2008 wherein it was stated that on the basis of the complaints having been made by the village inhabitants an enquiry was conducted by the Supply Inspector Khajni, who after recording the statements of the card holders, has reported that BPL and Antyodaya card holders are not being distributed food grains allocated to them; sugar is not being distributed on a monthly basis; kerosene is being over charged and that the general conduct of the petitioner is not good and, therefore, on the basis of the said allegations the licence of the petitioner was suspended and a reply was also called for. The petitioner submitted his reply on 2.12.2008 wherein he had categorically stated that 21 BPL Annyojna card holders are attached to his shop and that he is regularly distributing the food grains as per the prescribed price and that he had also appended the relevant extracts of the distribution register. Similarly, it was also stated that 16 Antyodaya Annyojna card holders are being regularly distributed food grains and in support thereof he had also appended the relevant extract of the distribution register. The petitioner had also appended alongwith said reply, relevant extract of the distribution register of the sugar and kerosene. In support of the general conduct it was submitted that he has 83 BPL card holders attached to his shop, but supply of food grains and other essential items is made only in respect of 27 BPL card holders and, therefore, it is quite legitimate for the other BPL card holders to raise a grievance as regards non-supply of food grains and other essential items. 3. It appears that the Sub-Divisional Officer in order to ascertain the veracity of the allegations had also got conducted an enquiry by the Tehsildar, who vide his report dated 9.1.2009 had reported that though 83 BPL card holders were attached to the shop, but supply is made only in respect of 27 BPL card holders and, therefore, 56 BPL card holders are raising complaints against the petitioner. However, he reported that the petitioner has over charged for kerosene and accordingly, he recommended forfeiture of security and a warning to the petitioner. It appears that another enquiry was conducted by the District Supply Officer and his team and on 5.7.2009 and before the said enquiry team it was reported by 21 BPL card holders that allocated items are not being distributed to them and that there is over charging of kerosene and it was also reported that sugar is never made available to them and accordingly, the Enquiry Report dated 10.9.2009 recommended for cancellation of licence of the petitioner. The licencing authority on the basis of the aforesaid report has cancelled the fair price licence of the petitioner vide his order dated 15.7.2009. The petitioner challenged the said order before the appellate authority, who has dismissed the appeal on 27.11.2009, hence the present writ petition. 4. The sole contention of the learned counsel for the petitioner is that the entire enquiry proceeding having been conducted behind the back of the petitioner and the same could not have formed the basis of the order of cancellation of his fair price licence and, therefore, the impugned orders are liable to be set aside. 5. Per contra, the learned standing counsel has sought to justify the impugned order on the ground that they have been validly passed after affording opportunity of hearing to the petitioner. 6. The suspension/cancellation of the fair price licence is regulated by the provisions of Government Order dated 29.7.2004, which prescribes an elaborate procedure, which is to be undertaken while suspending/cancelling the fair price licences and, inter alia, it provides that while conducting the inquiry the principles of natural justice should be adhered to. 7. The order of cancellation is based on the report dated 10.7.2009, and which in turn is based on the complaints of 21 B.P.L. card holders. There is nothing on record to indicate that the statements of the complainants was ever supplied to the petitioner and the petitioner was ever permitted to cross-examine them, in order to ascertain the veracity of the allegations. 8. There is nothing on record to indicate that the statements of the complainants was ever supplied to the petitioner and the petitioner was ever permitted to cross-examine them, in order to ascertain the veracity of the allegations. 8. On the facts of the present case, the petitioner ought to have been permitted to participate in the aforesaid inquiry and the statements of the complainants should not have been recorded behind the back of the petitioner or without furnishing the statement of the complainants to him and without giving him an opportunity to cross-examine the complainants, who had deposed against the petitioner, and thus any such action based on any such report or evidence could not become a foundation for passing an order of cancellation of fair price licence of the petitioner as cancellation has civil consequences. 9. This Court in a decision in Abu Baker v. State of U.P. and others, 2010 (6) ADJ 339 , had held as follows : “There is no material on record indicating either the petitioner was given any opportunity to cross-examine the witness who had deposed against him or the copies of the statements of witnesses so recorded were furnished to him. Thus what follows from the above discussion is that the petitioner has been penalised on the basis of the statements of Antodaya and BPL card holders recorded behind his back although neither the copies of the statements of the aforesaid witnesses were furnished to the petitioner nor he was given any opportunity to cross-examine the witness so examined.” 10. Applying the ratio of the law laid down in the aforesaid case, the Court finds that the inquiry proceedings were conducted in flagrant defiance of the Government Order dated 29.7.2004 and the law laid down by this Court and therefore, the case of the petitioner was severely prejudiced thereby making the impugned orders dated 15.7.2009 and 27.11.2009 unsustainable in law. 11. The writ petition succeeds and is hereby allowed. The orders dated 15.7.2009 and 27.11.2009 are hereby quashed. However, it shall be open for the respondents to pass fresh orders in the light of the observations made hereinabove and in accordance with law within a period of four months from the date of the production of the certified copy of this order. No order as to costs. ——————