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2013 DIGILAW 2063 (ALL)

Dharmendra Kumar v. State of U. P.

2013-08-07

SATYENDRA SINGH CHAUHAN

body2013
JUDGMENT Satyendra Singh Chauhan, J. This writ petition has been filed challenging the orders dated 28.5.2012 and 20.8.2011 passed by the opposite parties no.2 and 3 respectively. 2. The petitioner was arrested in a criminal case registered under Section 379 IPC on 10.9.2009 and thereafter a complaint was made against the petitioner on 11.9.2009 stating therein that the petitioner was lodged in jail, as such distribution of scheduled commodities was not taking place. On the said complaint, the fair piece agreement of the petitioner was suspended on the same day. Feeling aggrieved with the aforesaid order, petitioner preferred an appeal, in which an interim order was granted in favour of the petitioner, but later on the appeal was dismissed on 15.6.2011. Petitioner preferred writ petition bearing no.3812 (MS) of 2011 against the said order and this Court directed the opposite parties to file counter affidavit and the said writ petition is still pending. In the meantime, Sub-Divisional Magistrate passed an order directing the petitioner to submit his explanation to the charges mentioned in the suspension order as after dismissal of the appeal of the petitioner, the suspension order has been revoked. The petitioner submitted his explanation and after considering the explanation of the petitioner, the Sub-Divisional Magistrate cancelled the fair price shop agreement of the petitioner vide order dated 20.8.2011. Aggrieved with the aforesaid order, petitioner preferred an appeal and though the appeal was admitted by the appellate authority, but rejected the interim relief application vide order dated 27.2.2012. Against the said order, petitioner preferred Writ Petition No.1515 (MS) of 2012 before this Court and this Court was pleased to dispose of the said petition vide order dated 5.4.2012 with a direction to the appellate order to dispose of the appeal at an early date and in pursuance to the direction of this Court, the appellate court dismissed the appeal of the petitioner vide order dated 28.5.2012. Hence this petition. 3. Submission of counsel for the petitioner is that there was no charge against the petitioner in regard to irregularity in the distribution of scheduled commodities. The complaint against the petitioner was that he was lodged in jail in connection with a criminal case registered under Section 379 IPC on account of which the distribution of scheduled commodities was not taking place. The complaint against the petitioner was that he was lodged in jail in connection with a criminal case registered under Section 379 IPC on account of which the distribution of scheduled commodities was not taking place. He further submits that the said criminal case has got no connection with the distribution of the scheduled commodities and the distribution has been taking place all along. It is submitted that reliance placed by the learned Standing Counsel on clause-25 of the agreement also does not come to his rescue as the said clause only specifies that during the period a person is in jail, the fair price shop agreement shall be deemed to be suspended. Counsel for the petitioner submits that thereafter the petitioner has been released, but the fair price agreement of the petitioner was not restored. Submission is that the petitioner has not been convicted up till now, therefore, the second condition of clause-25 will not be applicable. 4. Learned Standing Counsel has relied upon clause-25 of the agreement and has submitted that the petitioner was arrested in a criminal case registered under Section 379 IPC and sent to jail and as a consequence thereof as contemplated under clause-25 of the agreement, his agreement was suspended. He has further submitted that a show cause notice was issued to the petitioner, but he did not submit any reply to the show cause notice and so the Sub-Divisional Magistrate proceeded to cancel the fair price shop agreement of the petitioner. Therefore, no interference is warranted by this Court. 5. I have heard counsel for the parties and perused the record. 6. There is no dispute in regard to the fact that petitioner was arrested in a criminal case registered under Section 379 IPC in which he was not named, but anyhow the petitioner was arrested on 10.9.2009. On 11.9.2009 a complaint was made alleging therein that no distribution of scheduled commodities was taking place on account of the arrest of the petitioner and on the said complaint, the fair price shop agreement of the petitioner was suspended on the same day. 7. On 11.9.2009 a complaint was made alleging therein that no distribution of scheduled commodities was taking place on account of the arrest of the petitioner and on the said complaint, the fair price shop agreement of the petitioner was suspended on the same day. 7. Counsel for the petitioner submits that even if the argument of learned Standing Counsel is accepted, then according to clause-25 of the agreement, the agreement shall remain suspended during the period a person is in jail, but once the person has been released, the fair price shop agreement will automatically stands restored and cancellation of the fair price shop agreement will follow only as and when the conviction takes place as contemplated under clause-25 of the agreement. The petitioner has not been convicted up till now and the said criminal case is not relatable to the distribution of the scheduled commodities and there is no allegation of any irregularity in the distribution of scheduled commodities by the petitioner. It appears that the petitioner's fair price shop agreement has been cancelled only on account of lodging of the petitioner in jail. The said contingency was over as soon as the petitioner was released on bail. Once the petitioner was released on bail and the conviction has not been followed up till now, the opposite parties were bound to restore the fair price shop agreement of the petitioner. Therefore, the orders passed by the authorities below cannot be sustained in law and deserved to be quashed. 8. Accordingly, writ petition is allowed and a writ in the nature of certiorari is issued quashing the orders dated 28.5.2012 and 20.8.2011 passed by the opposite parties no.2 and 3. Opposite parties are directed to restore the fair price shop agreement of the petitioner forthwith.