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2016 DIGILAW 13 (ALL)

Rajiv Kumar Dixit v. State of U. P.

2016-01-04

DEVENDRA KUMAR UPADHYAYA

body2016
JUDGMENT Devendra Kumar Upadhyaya, J. Heard learned counsel for petitioner and learned Standing Counsel appearing for State. 2. This petition challenges and assails the validity of the order dated 12.08.2014 passed by the Sub-Divisional Officer, Sitapur whereby fair price shop licence of the petitioner has been cancelled. The appeal preferred by the petitioner against the said order dated 12.08.2014 was also rejected by the appellate authority by means of order dated 12.05.2015. This appellate order is also under challenge in this petition. 3. The facts of the case, as culled out from the pleadings available on record, are that a surprise inspection by the Regional Supply Inspector was conducted on 16.07.2008, on the basis of which, Supply Inspector appears to have submitted a report stating therein that certain irregularities have been committed by the petitioner in distribution of the essential commodities. Based on the said report, the petitioner was given charge-sheet dated 16.07.2008 whereupon he submitted his reply on 04.08.2008. The matter was considered by the Sub-Divisional Officer, who by means of his order dated 30.08.2008 cancelled the licence of fair price shop of the petitioner, against which he preferred appeal before the appellate authority, which was allowed by means of order dated 06.10.2008 and the matter was remanded to the Sub-Divisional Officer. In compliance of the aforesaid order dated 06.10.2008, the petitioner was furnished with a copy of the inquiry report submitted by the Regional Supply Inspector along with copy of the charge sheet dated 16.07.2008 and he was required to furnish his reply and personally present his case. The petitioner thereafter submitted his reply, on consideration of which an order was passed on 17.12.2008 cancelling the licence of the fair price shop of the petitioner and also forfeiting the entire security amount of Rs. 5,000/-. 4. Against the aforesaid order of cancellation dated 17.12.2008, the petitioner again filed appeal before the appellate authority which was allowed by the appellate authority by means of order dated 16.12.2013 and the matter was remanded to the Sub-Divisional Officer with certain directions. 5. The terms of the remand i.e. directions contained in order of the appellate authority dated 16.12.2013 is relevant to be mentioned. The said order has been annexed as annexure no. 5. The terms of the remand i.e. directions contained in order of the appellate authority dated 16.12.2013 is relevant to be mentioned. The said order has been annexed as annexure no. 8 to the petition, a perusal of which reveals that the appellate authority has given categorical finding that the affidavits/statements of the card holders were not cross-examined by the Sub-Divisional Officer and as such the order passed by the Sub-Divisional Officer was set-aside directing him to get the affidavits/evidence cross-examined and thereafter to decide the matter after giving opportunity of hearing to the petitioner and furnishing copies of the statements made in the cross examination. 6. The terms of reference in the appellate order dated 16.12.2013 is as under: - "fdUrq fodzsrk }kjk izLrqr 'kiFki=ksa@c;kuksa dk izfrijh{k.k ugha djk;k x;kA ,slh fLFkfr esa vihy Lohdkj djrs gq;s voj U;k;ky; }kjk ikfjr vkf{kIr vkns'k fujLr fd;k tkrk gS rFkk izdj.k voj U;k;ky; dks bl funsZ'k ds lkFk izfrizsf"kr fd;k tkrk gS fd vihydrkZ@fodzsrk }kjk izLrqr 'kiFki=ksa@lk{;ksa dk izfrijh{kk djk;s rFkk izfrijh{k.k vk[;k o fy;s x;s c;kuksa dh izfr;kWa miyC/k djk;s ,oa O;fDrxr lquokbZ dk volj nsdj miyC/k lk{;ksa ,oa lHkh fo|eku ifjfLFkfr;ksa ds vk/kkj ij ,d ekg ds vUnj xq.knks'k ds vk/kkj ij rF;kRed vkns'k ikfjr djsaA bl vkns'k dh ,d izfr voj U;k;ky; dh i=koyh ds lkFk Hksth tk;sA ckn vko';d dk;Zokgh bl U;k;ky; dh i=koyh nkf[ky nQ~rj gksA" 7. From perusal of the relevant portion of the order dated 16.12.2013 as extracted herein above, it is clear that the Sub Divisional Officer was under judicial obligation to have cross examined the persons who have made statements/affidavits in favour of the petitioner. However, from perusal of the order dated 12.08.2014, which is under challenge in this petition, it does not transpire from anywhere that any cross-examination of the card holders who had given affidavits or made statements in favour of the petitioner was ever done. The Sub-Divisional Officer though makes a mention of the remand order dated 16.12.2013 passed by the appellate authority and also makes a mention about the availability of the affidavits, but has not cross-examined the card holders, who had submitted the affidavits. The Sub-Divisional Officer though makes a mention of the remand order dated 16.12.2013 passed by the appellate authority and also makes a mention about the availability of the affidavits, but has not cross-examined the card holders, who had submitted the affidavits. Such a course adopted by the Sub-Divisional Officer is clearly in the teeth of the terms of the remand contained in the order dated 16.12.2013, though he has given a finding about the doubtfulness of the affidavits and has also given finding that all the affidavits have been furnished under some coercion. 8. It is settled principle of law that unless and until the terms of the remand are challenged and are set-aside by a superior court, the court below or the subordinate authority is bound by the said terms. In the instant case, it is apparent that the terms of the remand as contained in the order dated 16.13.2013 were not followed by the Sub-Divisional Officer as he has, admittedly, not cross-examined the persons/card holders, who had submitted their affidavits in support of the claim of the petitioner. 9. The appellate authority has also cursorily given finding that the Sub-Divisional Officer while passing the impugned order has complied with the terms of the appellate order dated 16.12.2013. The said finding given by the appellate authority is also not based upon correct appreciation of material and evidence available on record. In the result, the impugned orders are liable to be quashed. 10. Accordingly, the petition is allowed and the impugned order dated 12.08.2014 passed by the Sub-Divisional Officer and the order dated 12.05.2015 passed by the appellate authority as contained in annexure nos. 2 and 1 respectively are hereby quashed. The Sub Divisional Officer concerned is directed to consider the matter afresh in light of the terms of the remand contained in the order passed by the appellate authority dated 16.12.2013 in appeal no. 602/08-09, Rajiv Kumar Dixit v. State of U.P. and others, under Section 28 (3) of U.P. Scheduled Commodities Distribution Order, 2004 within a period of three months from the date or production of certified copy of this order. 11. There will be no order as to costs.