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2014 DIGILAW 1718 (ALL)

HIRA LAL YADAV v. COMMISSIONER AZAMGARH

2014-05-27

SHASHI KANT GUPTA

body2014
JUDGMENT Hon’ble Shashi Kant Gupta, J.—By means of the present writ petition, the petitioner challenges the order dated 19.6.2008 passed by the Sub-Divisional Magistrate, Sikanderpur, Ballia cancelling the agreement of fair price shop of the petitioner as well as the order dated 21.11.2008 passed by the Commissioner Azamgarh Division, Azamgarh whereby the Appeal No. 319B of 2008 filed by the petitioner against the order of cancellation has been dismissed and the order dated 19.6.2008 cancelling the fair price shop licence has been confirmed. 2. Counter and rejoinder-affidavits have been exchanged between the parties. 3. It is stated at the Bar that complainant Respondent No. 5 Ram Sakal Ram died during the pendency of the present writ petition. Brief Facts 4. The relevant and essential facts which emerge from the writ petition and the supplementary-affidavits are as follows; 5. The petitioner was a licensee of a fair price shop situated in Gram Sabha Chak Usraila, Block Pandah, Tehsil Sikanderpur, District Ballia. The petitioner was running the aforesaid shop for the last several years. The petitioner belongs to Yadav community and at the relevant time, the State was ruled by the Bahujan Samaj Party. The fair price shop licence of the petitioner was suspended on 31.8.2007 on a complaint made by some persons malafidely, in collusion with Gaon Pradhan Ram Sakal Ram who belonged to Scheduled Caste community and had a strong grudge against the petitioner. The matter was inquired into by the concerned supply inspector and it was found that supply of essential commodity was being made regularly to the card holders and the dispute had originated on account of the strained and hostile relations between the petitioner and the Gaon Pradhan. There was no dissatisfaction among the card holders, however, some discrepancy in the stock was found due to inadvertence. The Sub-Divisional Magistrate, Sikanderpur, Ballia, after considering the inquiry report, restored the licence and supply of essential commodities of the petitioner after imposing a fine of Rs. 2000/- 7. Again after a period of three months i.e. 19.2.2008, yet another show-cause notice was issued to the petitioner alleging that he has not distributed the essential commodities to certain persons. The Sub-Divisional Magistrate, Sikanderpur, Ballia, after considering the inquiry report, restored the licence and supply of essential commodities of the petitioner after imposing a fine of Rs. 2000/- 7. Again after a period of three months i.e. 19.2.2008, yet another show-cause notice was issued to the petitioner alleging that he has not distributed the essential commodities to certain persons. After receiving the said show-cause notice dated 19.2.2008, the petitioner gave a specific reply to the same, by mentioning therein that the card holders named in the show-cause notice dated 19.2.2008 were hand-in-glove with the Gaon Pradhan and they had themselves not turned up to purchase the essential commodities from his shop and hence, the petitioner could not be held responsible for non-supply essential commodities to them. However without considering the reply to the show-cause notice dated 19.2.2008, impartially and with an open mind, the Sub-Divisional Magistrate, Sikanderpur, Ballia suspended the fair price shop license of the petitioner by means of an order dated 2.4.2008. Subsequently a regular inquiry was conducted by the Tehsildar, Sikanderpur in which charges levelled against the petitioner were found not to have been made out and the Tehsildar, Sikanderpur in his report dated 6.5.2008 recommended for the restoration of the fair price shop licence to the petitioner. It was further stated in the said inquiry report that except some card holders, most of the card holders had received the supply for the month of January, February and March 2008 and it was recommended by the Tehsildar, Sikanderpur that the fair price shop licence should be restored to the petitioner after due warning and imposition of fine. When the stock balance was checked physically the essential commodities which were not lifted by the card holders were found to be actually included in the stock inventory. 8. Thereafter a complaint was made by Gram Pradhan Ram Sakal Ram and Om Prakash Bhartiya, Zila Adhyashak of Bahujan Samaj Party, Ballia to the Chief Minister on 5.5.2008 for cancellation of the fair price shop license of the petitioner. 9. The State Government vide its letter dated 16.5.2008 directed the District Magistrate, Ballia to take necessary action in the matter. Thereafter a complaint was made by Gram Pradhan Ram Sakal Ram and Om Prakash Bhartiya, Zila Adhyashak of Bahujan Samaj Party, Ballia to the Chief Minister on 5.5.2008 for cancellation of the fair price shop license of the petitioner. 9. The State Government vide its letter dated 16.5.2008 directed the District Magistrate, Ballia to take necessary action in the matter. In the meantime, the petitioner filed a Transfer Application No. 84 of 2008 on 11.6.2009 before the District Magistrate, Ballia making a prayer, inter alia, that on account of political influence, he does not have any hope for justice from the Sub-Divisional Magistrate, Sikanderpur, Ballia so the matter be transferred to some other competent officer. The said transfer application was entertained by the District Magistrate, Ballia and a report was called for on 25.6.2008 for the purpose of deciding the transfer application. However, even before the said transfer application,could be decided by the District Magistrate, the Respondent No. 2 Sub-Divisional Magistrate, Sikanderpur, Ballia, hastily passed an order on 19.6.2008, cancelling the fair price shop of the petitioner. The said order was challenged by the petitioner by filing an appeal before the Commissioner which too met with the same fate and was dismissed by order dated 21.11.2008. Hence, the present writ petition. Submission on behalf of the petitioner 10. Learned counsel for the petitioner submitted that the impugned orders of cancellation are wholly illegal, arbitrary and politically motivated. It was further submitted that the appellate Court while dismissing the appeal failed to appreciate that the fair price shop licence was cancelled due to political pressure. It was also submitted that the appellate Court had held that the letter of the political leader Om Prakash Bhartiya, Zila Adhyashak Bahujan Samaj Party was not available on record, the said observation was factually incorrect as the aforesaid letter was very much available on record. It was further submitted that the petitioner has not committed any irregularity whatsoever in the distribution of the essential commodities but the licensing authority failed to consider the reply as well as the explanation of the petitioner. It was further submitted that the inquiry was conducted by the Tehsildar, Sikandarpur wherein charges levelled against the petitioner were found not to have been made out. As a consequence whereof the Tehsildar, Sikandarpur recommended in his report dated 6.5.2008 for restoration of the fair price shop licence of the petitioner. It was further submitted that the inquiry was conducted by the Tehsildar, Sikandarpur wherein charges levelled against the petitioner were found not to have been made out. As a consequence whereof the Tehsildar, Sikandarpur recommended in his report dated 6.5.2008 for restoration of the fair price shop licence of the petitioner. He further submitted that the said report clearly shows that there was no misconduct or negligence on the part of the petitioner and the card holders under the instruction of Gram Pradhan deliberately not lifted their ration and maliciously lodged the complaint against the petitioner. The Sub-Divisional Magistrate, Sikandarpur under the political pressure has totally ignored the inquiry report of the Tehsildar, Sikandarpur and illegally passed the order of cancellation of the fair price shop license of the petitioner. 11. It was further submitted that the petitioner belonged to the Yadav community and was also a member of the Samajvadi Party (in short “SP”) while the complainant Gaon Pradhan Ram Sakal Ram belonged to Scheduled Caste community and was a member of ruling Bahujan Samaj Party, Ballia and had a grudge against the petitioner. He exerted pressure on the local leader, namely Om Prakash Bhartiya, Zila Adhyashak of Bahujan Samaj Party to write a letter to the Chief Minister for cancellation of the fair price shop licence of the petitioner. 12. It was further submitted that the inquiry officer Tehsildar, Sikandarpur in his report has categorically stated that most of the card holders of the village were satisfied with the distribution of the essential commodities and due to political rivalry the said complaint was made but this important aspect of the matter was ignored by the concerned authority. The Sub-Divisional Magistrate, Sikanderpur, Ballia illegally and arbitrarily cancelled the licence of the petitioner without giving any opportunity whatsoever. Submission on behalf of the State 13. Learned Standing Counsel submits that the impugned orders are based on proper appraisal of evidence to which no perversity could be atributed, hence the writ petition is liable to be dismissed. It was further submitted that the primary object of public distribution system is to ensure distribution of scheduled commodities at subsidized rates to the weaker sections of society. It could not be said that the scheme was formulated with a view to generate employment. Employment is incidental to the dominant object, which is to distribute scheduled commodities to the poorest of the poor. It could not be said that the scheme was formulated with a view to generate employment. Employment is incidental to the dominant object, which is to distribute scheduled commodities to the poorest of the poor. The Full Bench of this Court in Puran Singh v. State of U.P. and others, 2010(3) ADJ 659 , has held that the order of cancellation of licence is to be preceded by opportunity. It is not disputed that opportunity was given. Even otherwise, considering the nature of Public Distribution Scheme, it could not be said that petitioner has any statutory/vested right to operate the same. 14. Heard learned counsel for the petitioner, learned Standing Counsel as well as learned counsel for the Respondent No. 5. 15. The facts as emerges from the record indicates that in the year 2007 some persons had made a complaint against the petitioner with regard to non-supply of food grains and an inquiry to this effect was made by Senior Supply Inspector and the shop of the petitioner was suspended. Thereafter inquiry was conducted by Tehsildar concerned who in his report has stated that the dispute had arisen on account of rivalry between the petitioner and the gaon pradhan, and the card holders had expressed no dissatisfaction. Except some minor discrepancy in the stock nothing adverse was found against the petitioner, and it was recommended that his license may be restored. The Sub-Divisional Magistrate concerned in pursuance to the inquiry report dated 31.8.2007, restored the license of the petitioner after imposing a fine of Rs. 2000/- by means of an order dated 3.11.2007. 16. It appears that the very same persons again made a complaint with regard to non-supply of food grains in the month of February 2008 i.e. nearly after three months of the earlier complaint and the shop of the petitioner was again suspended by the sub-divisional magistrate concerned and show-cause notice was issued to the petitioner. In the said show-cause notice, there was no whisper of over charging. The petitioner replied to each and every allegation made in the show-cause notice. In an inquiry it was concluded that except few card holders, most of the card holders have received the commodities for the month of January February and March 2008 and it was recommended that after due warning and imposition of fine shop may be restored. The petitioner replied to each and every allegation made in the show-cause notice. In an inquiry it was concluded that except few card holders, most of the card holders have received the commodities for the month of January February and March 2008 and it was recommended that after due warning and imposition of fine shop may be restored. The statement of few card holders were also recorded and nothing substantial was found against the petitioner. The record further reveals that a complaint was also made to the State Government at the behest of the Gram Pradhan and a report was called by the State Government and a direction was also given to the District Magistrate to take suitable action after making inquiry. In the meantime, since the petitioner was not expecting any justice from the concerned sub-divisional magistrate, he filed a transfer application before the District Magistrate who called for a report on 18.6.2008 fixing 25.6.2008 but instead of submitting its report, the concerned Sub-Divisional Magistrate, Sikanderpur, Ballia in order to frustrate the transfer application, cancelled the licence of the fair price shop of the petitioner by passing order dated 19.2.2008 on the very next date. 17. The main basis of impugned order is that the petitioner over charged for the sale of essential commodities including kerosene oil and non-supply of essential commodities. The show-cause notice issued to the petitioner dated 19.2.2008 was with respect to non-distribution of food grains to certain card holders for the month of November 2007, December 2007 and January 2008. The show-cause notice was specific in this regard and duly replied to by the petitioner. However, the impugned order cancelling the fair price shop licence passed by the sub-Divisional Magistrate Sikanderpur is not on the ground for non-distribution of essential commodities to the card holders for the aforesaid three months but for distributing less quantity of food grains and for overcharging for which the petitioner was never called upon to show-cause. The impugned order does not even make a reference to the allegation made in the show-cause notice i.e. the non-distribution of food grains to the specific card holders for the month of November 2007, December 2007 and January 2008. Thus impugned order has been passed without following the principles of natural justice by denying the opportunity to the petitioner to furnish an explanation. Thus impugned order has been passed without following the principles of natural justice by denying the opportunity to the petitioner to furnish an explanation. In Indian Constitutional law, natural justice does not exist as an absolute jural value but is humanistically read by Courts into those great rights enshrined in Part III as the quintessence of reasonableness. One of the first principles of this sense of justice is that one side must not be permitted to use means/grounds influencing a decision which means are not known to the other side. (Nawabkhan Abbaskhan) 1974 (2 SCC 121). Action resulting in civil consequences being taken on material which is not only not supplied but also no disclosed to the person against whom action is taken cannot be countenanced by Courts. Procedural fairness is as much of importance as the substantive law itself (CBI v. DC Agarwal) (1993) (1 SCC 13). 18. It was a specific case of the petitioner that no inspection was done by the Sub Divisional Magistrate, Sikanderpur before passing the order of cancellation and the report of alleged inspection by the Sub Divisional Magistrate, Sikanderpur was never provided to the petitioner. The petitioner alleged that the Sub Divisional Magistrate, Sikanderpur had prepared the entire report surreptitiously without actually carrying out any physical inspection. Moreover, the petitioner had prayed to the Sub-Divisional Magistrate for physical verification and spot inspection which was refused by him. The petitioner raised specific grounds in this regard in his appeal which were also not considered by the appellate authority. The petitioner was never confronted with the report of the Sub Divisional Magistrate, Sikanderpur who prepared the alleged report on 18.6.2008 and passed the impugned order on 19.6.2008. No opportunity was, therefore, given to the petitioner to lead evidence in rebuttal against the alleged material found adverse to him and render an explanation to the same instead it was made the basis of cancellation of the fair price shop licence which has resulted in grave prejudice and injustice to the petitioner. 19. The inquiry officer has very categorical stated in his report dated 6.5.2008 that except few card holders, the essential commodities have been distributed to the card holders for the month of January, February and March 2008. 19. The inquiry officer has very categorical stated in his report dated 6.5.2008 that except few card holders, the essential commodities have been distributed to the card holders for the month of January, February and March 2008. The statements of the card holders recorded by the Tehsildar as well as the recommendations made by the Tehsildar, clearly indicate that there was no general dissatisfaction among the card holders, despite which the impugned order was passed, cancelling the shop licence. 20. The record also indicates that the extensive reply which was given by the petitioner in pursuance of the show-cause notice was not given due weightage. This Court also cannot close its eyes to the rivalry between the Gaon Pradhan and the petitioner since the petitioner belonged to Yadav community and was also a member of the Samajvadi Party while the complainant Gaon Pradhan Ram Sakal Ram belonged to Scheduled Caste community and was a member of ruling Bahujan Samaj Party, Ballia. Therefore, the possibility of the political vendetta against the petitioner cannot be ruled out. Moreover, the inquiry report of the Tehsildar clearly suggests that the allegations against the petitioner were not so grave so as to warrant cancellation of his fair price shop particularly when the Tehsildar himself had recommended for restoration of the licence to the shop after issuing a warning as well as an imposition of fine upon the petitioner, as such, the impugned order passed by the Sub Divisional Magistrate cancelling the fair price shop of the petitioner is not justified and cannot stand the scrutiny of law. The approach of the appellate authority was too superficial and casual. It is also notable that the subsequent complaint also was filed by the very same persons who were the earlier complainants against the petitioner. The petitioner has also stated that they had themselves not turned up to lift their ration from the said shop since they were hand in glove with the Gram Pradhan. It is also notable that when the shop was cancelled and the balance stock was checked it was found that the essential commodities which was not lifted by the complainants were found to be actually included in the stock inventory of the shop, as such, it cannot be said that the essential commodities was black-marketed or there was non supply of food grains. Perhaps there might have been some inadvertent discrepancy in the distribution but that does not mean that in every eventuality the shop should be cancelled. In case some inadvertent discrepancy was found in the shop due warning and imposition of fine on the petitioner would have served the purpose. 21. In view of the foregoing discussion, the writ petition is allowed and the judgment and order dated 19.6.2008 passed by the Sub-Divisional Magistrate, Sikanderpur, Ballia cancelling the agreement of fair price shop of the petitioner as well as the order dated 21.11.2008 passed by the Commissioner Azamgarh Division, Azamgarh in the Appeal No. 319B of 2008 are set aside. Concerned Authorities are derected to restore the fair price shop licence of the petitioner forthwith.