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2015 DIGILAW 152 (ALL)

HASHIM v. STATE OF U. P.

2015-01-22

SURYA PRAKASH KESARWANI

body2015
JUDGMENT Hon’ble Surya Prakash Kesarwani, J.—Heard Sri Manish Dev, learned counsel for the petitioners, Sri Ashok Kesarwani, learned Standing Counsel for the Respondent No. 1, 2 and 3 and Sri Abhishek Srivastava, holding brief of Sri Arun Kumar Srivastava, learned counsel for the respondent No. 4. With the consent of learned counsel for the parties, this writ petition is being disposed of finally without calling for a counter-affidavit. 2. Briefly stated the facts of the present case are that two charges were leveled against the petitioner, namely some APL cards holder have given statement which was verified by village Pradhan that kerosene oil is sold by the petitioner at Rs. 16.00 per liter and APL wheat has not been given to them. The second charge was that Sri Farookhan had stated that his BPL card has been kept by the petitioner and the same has not been returned. Petitioner submitted detailed reply and stated that the compliant had been made at the behest of earlier fair price shop dealer, the complaint is wholly without basis, the compliant was also made earlier and after due inquiry an order dated 5th October, 2012 was passed and the petitioner’s fair price shop licence was restored and just after three months opposite group has again managed to make a compliant. It was also explained that distribution to APL card holders has been made in accordance with law in supervision of the nominated distribution committee by the Government without any complaint. Kerosene oil is distributed at the fixed rate of Rs. 15.50 per liter. It was also explained that there are 500 APL card holders attached to fair price shop in question against which 28.08 quintel wheat is given to the petitioner for distribution and accordingly 10 Kg. wheat to 281 APL card holders has been distributed under the policy first come first get. It was also explained that the allegation of the BPL card holder is wholly false and an affidavit of the said BPL cards holder was also filed who denied the complaint. The respondent No. 3 without considering the explanation has passed the order dated 15th July, 2013 cancelling the fair price shop licence of the petitioner. 3. Aggrieved with this order, the petitioner preferred an appeal before the Commissioner Mordabad Division Moradabad which was rejected vide order dated 14th August, 2014 without any discussion or finding on the charges. The respondent No. 3 without considering the explanation has passed the order dated 15th July, 2013 cancelling the fair price shop licence of the petitioner. 3. Aggrieved with this order, the petitioner preferred an appeal before the Commissioner Mordabad Division Moradabad which was rejected vide order dated 14th August, 2014 without any discussion or finding on the charges. He merely observed that the explanation of the petitioner was not found satisfactory by the respondent No. 3 and his licence was earlier cancelled in November, 2012 which was restored subsequently after confiscating his security of Rs. 5,000/-. 4. I have carefully considered the submissions of learned counsel for the parties. 5. It is not in dispute that merely two charges were leveled against the petitioner against which exhaustive reply was submitted by the petitioner as briefly noted above. The respondent has passed the impugned order without any discussion on the objection raised by the petitioner. The respondent No. 2 has not given any reason to reach to his conclusion. There is total non consideration of the explanation submitted by the petitioner. Non recording of reasons is apparently violation of rules of natural justice. The order without valid reasons cannot be sustained. To give reasons is the rule of natural justice. It is the duty of every Court to give reason for its conclusion while deciding an issue. The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind. 6. Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, it becomes lifeless. Reasons substitute subjectivity by objectivity. Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Every litigant, who approaches the Court or the appellate authority for relief is entitled to know the reason for acceptance or rejection of his prayer. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court or authority. Every litigant, who approaches the Court or the appellate authority for relief is entitled to know the reason for acceptance or rejection of his prayer. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court or authority. These settled principles of law are well supported by the judgements of Hon’ble Supreme Court in the cases of The Secretary & Curator, Victoria Memorial v. Howrah Ganatantrik Nagrik Samity and others, JT 2010(2)SC 566 para 31 to 33 and Chandana Impex Pvt. Ltd. v. Commissioner of Customs, New Delhi, 2011(269) ELT 433 (SC) (para 8). 7. In the case of Udhav Das Kewat Ram v. CIT, 1967 (66) ITR 462 , Hon’ble Supreme Court held that Tribunal must consider with due care all material facts and record its findings on all contentions raised before it and the relevant law. In the case of Omar Salay Mohd. Sait v. Commissioner of Income Tax, Madras, AIR 1959 SC 1238 , Hon’ble Supreme Court held that it is necessary, however, that every fact for and against the assessee must have been considered with due care and the Tribunal must have given its finding in a manner which would clearly indicate what were the questions which arose for determination, what was the evidence pro and contra in regard to each one of them and what were the evidence on record before it. The conclusions reached by the Tribunal should not be coloured by any irrelevant considerations or matters of prejudice and if there are any circumstances which required to be explained by the assessee, the assessee should be given an opportunity of doing so. On no account whatever should the Tribunal base its findings on suspicions, conjectures or surmises nor should it act on no evidence at all or on improper rejection of material and relevant evidence or partly on evidence and partly on suspicions, conjectures or surmises and if it does anything of the sort, its findings, even though on questions of fact, will be liable to be set aside. 8. Considering the facts of the present case, I am of the opinion that the respondent No. 3 has passed the impugned order without consideration to the relevant materials available on record. The impugned order has been passed without recording any reason for the conclusions reached. 8. Considering the facts of the present case, I am of the opinion that the respondent No. 3 has passed the impugned order without consideration to the relevant materials available on record. The impugned order has been passed without recording any reason for the conclusions reached. The explanation of the petitioner has not been considered in the impugned order. Under the circumstances the impugned order dated 15.7.2014 passed by respondent No. 3 and the impugned order dated 14.8.2014 passed by respondent No. 2 cannot be sustained and are therefore set aside. 9. In result the writ petition succeeds and is hereby allowed with cost of Rs. 5,000/- which shall be paid by the Respondent No. 2 to the petitioner within one month.