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2016 DIGILAW 2335 (ALL)

Amit Kumar v. State of U. P.

2016-07-06

RAN VIJAI SINGH

body2016
JUDGMENT Ran Vijai Singh, J. Heard Sri Uadi Chandari, along with Sri Pawan Shukla, learned counsel for the petitioner, learned Standing Counsel appearing for the State-respondents and Sri Sanjai Kumar Pandey, learned counsel for respondent no. 8. Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the order dated 22.4.2016 as well as order dated 31.3.2016 passed by the District Supply Officer, Siddharth Nagar in Appeal No. C2016170000143 (Amit Kumar v. District Supply Officer). Vide order dated 31.3.2016, the agreement of the petitioner to run fair price shop was suspended; whereas vide order dated 22.4.2016, the petitioner's agreement to run fair price shop has been cancelled. The petitioner has further prayed to issue a writ of certiorari quashing the order dated 13.6.2016 passed by the District Supply Officer, Siddharth Nagar by which, fair price shop agent has been ordered to be appointed. Further prayer has been made for issuing a writ of mandamus directing the respondent no. 2 to decide the stay application of the petitioner pending in appeal. Prayer has also been made for issuing a writ of mandamus directing the authorities not to create any third party right over the fair price shop on the basis of the order dated 13.06.2016 passed by the District Supply Officer. 2. The facts of the case, in brief, are that the petitioner herein was appointed as fair price shop agent of Gram Panchayat Belwa Lalaghunai, Vikash Khand Khesaraha, Tehsil Bansi, District Siddharth Nagar. While working as such, the petitioner's agreement to run fair price shop was suspended by the District Supply Officer on 31.3.2016 on the basis of the inquiry made on 30.3.2016 pursuant to the complaint received on 28.3.2016. The petitioner herein was required to file his reply to the prima facie charges levelled against the petitioner. The petitioner herein filed his reply, but without considering the same the District Supply Officer has cancelled the agreement of the petitioner to run fair price shop vide order dated 22.4.2016. It is stated that all the card holders, who have allegedly given their statements before the District Supply Officer, have later on, filed their affidavits before him that they have not given any statement. It is also stated that everything has been done on the instance of Hon'ble State Minister for Food and Civil Supply on the complaint of one Sri Om Prakash. It is also stated that everything has been done on the instance of Hon'ble State Minister for Food and Civil Supply on the complaint of one Sri Om Prakash. The letters/orders passed by the Hon'ble Minister have been brought on record of the writ petition. It is also stated that after cancellation of the agreement, the petitioner herein has filed appeal before the Divisional Commissioner. During the pendency of the appeal, an application was moved by Sri Moti Lal and others for appointing one Sri Sohel Ahmad as fair price shop agent of village in question for the reason that after cancellation of the agreement of the petitioner to run fair price shop, the shop has fallen vacant. The Hon'ble Minister, on that, made a note to the District Supply Officer to proceed in accordance with caption (ka), which is with regard to appointment of Sri Sohel Ahmad as fair price shop agent. It is also stated that along with the appeal, the petitioner herein has filed stay application. The Divisional Commissioner, although has admitted the appeal, but has not passed any order on the stay application. 3. The submission is that, in view of the Order 28(3) of the U.P. Schedule Commodities Distribution Order, 2004, it was incumbent upon the Divisional Commissioner to consider the petitioner's stay application. Learned counsel for the petitioner contended that the proceeding of suspension, cancellation and subsequent order to consider the appointment of Sohel Ahmad is an outcome of pressure of the Hon'ble Minister. It is contended that as would appear from the record, after receipt of complaint dated 28.3.2016, the inquiry was made on 30.3.2016 and statement of 84 card holders were recorded. Neither the copy of the statements of the card holders, nor the inquiry report, nor any fresh charge sheet after order of suspension has been served upon the petitioner and the impugned order has been passed contrary to the law laid down by the decision of Full Bench of this Court in the case of Puran Singh v. State of U.P. and others ( 2010 (3) ADJ 659 (FB); wherein it has been observed that after the suspension order, if the authority decides to cancel the agreement of the fair price shop agent, then full-fledged inquiry is necessary; meaning thereby, a proper charge sheet has to be served with the inquiry report etc. The meaning of the 'full-fledged inquiry' has been discussed in the case of Ashok Kumar Tiwari v. State of U.P. and others (Writ-C No. 12737 of 2013, decided on 28.11.2014) and Smt. Santara Devi v. State of U.P. and others ( 2016(2) ADJ 70 ). 4. This Court in Abu Baker v. State of U.P. through Secretary (F.&S.) Government of U.P. at Lucknow and others 2010 (80) ALR 769 and Gyan Singh v. State of U.P. and others (writ petition no. 33712 of 2006, decided on 12.9.2012), which has been followed in the case of Ashok Kumar Pandey v. State of U.P. and others (civil misc. writ petition no. 1070 of 2010, decided on 13.12.2012), has held that if the decision is based on the statements of the complainants/cardholders, then the copies of the statements have to be provided to the fair price shop agent, so that, he may be able to cross-examine the persons whose statements have been made basis for cancellation of agreement. 5. There may be substance in the submissions of learned counsel for the petitioner, but since the petitioner has availed the remedy of appeal, without expressing any opinion on merit of the submissions of the learned counsel for the petitioner, the writ petition is disposed of with the direction to the Divisional Commissioner, Allahabad to pass an appropriate order on the petitioner's stay application filed in appeal within a period of four weeks from the date of receipt of certified copy of the order of this Court in accordance with law and thereafter, decide the appeal expeditiously, but not later than six months from the date of decision in the stay application without granting any unnecessary adjournments to the learned counsel for the parties. 6. So far as argument of the learned counsel for the petitioner with regard to creation of third party right is concerned, the argument appears to be misconceived for the reason that after two months of the cancellation order, fresh fair price shop agent has to be appointed. Therefore, whoever is appointed as fair price shop agent, his status would be of a subsequent allottee and the subsequent allottee has no right. Reference may be had to the judgments of this Court in Nasarudin v. State of U.P. and Ors. Therefore, whoever is appointed as fair price shop agent, his status would be of a subsequent allottee and the subsequent allottee has no right. Reference may be had to the judgments of this Court in Nasarudin v. State of U.P. and Ors. 2015 (11) ADJ 557 , Smt. Javitri Devi v. State of U.P. and others (WRIT - C No. - 63117 of 2015, decided on 18.11.2015), Shyam Singh v. State Of U.P. And 4 Others (WRIT - C No. - 63882 of 2015, decided on 4.12.2015) and Roop Kishor v. State Of U.P. And 4 Others (Writ-C No.68087 of 2015, decided on 18.12.2015). 7. The view taken by this Court although in different case has been approved by the Apex Court in Poonam v. State of U.P. and Others ( 2016 (2) SCC 779 ), therefore, even if any person is appointed during the pendency of the appeal, he will have no right in case the appeal filed by the petitioner is allowed. Petition Disposed of.