Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 2691 (ALL)

Bansh Bahadur v. State of U. P.

2016-08-03

RITU RAJ AWASTHI

body2016
JUDGMENT Ritu Raj Awasthi, J. Heard learned counsel for the petitioner as well as the learned Standing Counsel and perused the records. 2. This writ petition has been filed challenging the order dated 6.3.2013 passed in Appeal No.527 of 2008-09 by the opposite party no.2, as contained in Annexure No. 1 to the writ petition and the order dated 24.9.2008 passed by the opposite party no.3, as contained in Annexure No.4 to the writ petition. 3. As per the given facts of the case the petitioner was granted fair price shop license at village Puraina, Gram Panchayat Puraina, Vikas Khand and Tehsil Beeghapur, District Unnao. By the order dated 30.1.2009, the opposite party no.3 has suspended the agreement of fair price shop license of the said shop. It is alleged that no preliminary inquiry was made and no spot inspection was done before suspending the license of the petitioner. The petitioner preferred an appeal before the opposite party no.2 which was decided on 4.7.2008 whereby the appellate Court had remanded the matter back to the competent authority to decide it afresh by passing a reasoned and speaking order. It was thereafter that by the impugned order dated 24.9.2008, the agreement of fair price shop license was cancelled. The appeal preferred by the petitioner against the cancellation order was dismissed vide order dated 6.3.2013. 4. Learned counsel for the petitioner submits that the appellate court although has come to the conclusion that the inspection of the stock in the fair price shop in question was not done properly as the entire stock which was kept in two separate shops was not taken into consideration and the report was submitted considering the stock kept in one shop only, but has rejected the appeal on the ground that the progress in the criminal proceedings initiated against the petitioner under Section 3/7 Essential Commodities Act, is not available on record and in such a situation it is not possible for the appellate Court to take any decision, hence the appeal is rejected. 5. Submission of learned counsel for the petitioner is that the criminal proceedings are altogether different from the proceedings initiated with respect to the cancellation of agreement of fair price shop license. Both are independent proceedings and have nothing to do with each other. 5. Submission of learned counsel for the petitioner is that the criminal proceedings are altogether different from the proceedings initiated with respect to the cancellation of agreement of fair price shop license. Both are independent proceedings and have nothing to do with each other. The appeal preferred by the petitioner could not have been rejected merely on the ground that some criminal proceedings have been initiated against the petitioner and the progress is not available on record. In support of his submissions, learned counsel for the petitioner has relied on the Division Bench judgment of this Court at Allahabad in the case of Smt. Raj Kumari Singh Vs. State of U.P. & others, dated 3.3.2011 passed in Writ-C No.1766 of 2011. 6. Learned Standing Counsel, on the other hand submits that the proceedings under Section 3/7 Essential Commodities Act were initiated on the same ground on which the agreement of fair price shop of the petitioner has been cancelled and as such unless and until the said proceedings were finalized, the appellate court could not have heard the appeal. The appellate court has rightly dismissed the same. 7. I have considered the submissions made by the parties' counsel and gone through the records. 8. The short question involved in the instant writ petition is whether cancellation of agreement of fair price shop license can be made on the ground of lodging of a criminal case against the licensee under Section 3/7 Essential Commodities Act and whether the appeal preferred against the cancellation order can be dismissed on the ground that the criminal proceedings are pending. 9. The Division Bench of this Court in the case of Smt.Raj Kumari Singh (Supra), has held that mere filing of the FIR cannot result in holding a fair price shop owner guilty of the offences charged. The Division Bench has also observed that this Court in the case of Jagdish Narain Mishra Vs. State of U.P. & others, (Civil Misc. Writ Petition No. 28051 of 2008) vide judgement and order dated 30.10.2009 has categorically held that the Licensing Authority cannot cancel the fair shop agreement merely on account of a dealer being involved in a criminal case. The relevant paragraph in Smt.Raj Kumari Singh (Supra) on reproduction reads as under: "Ordinarily we would not have entertained this writ petition as an appeal is available in a case of cancellation of licence. The relevant paragraph in Smt.Raj Kumari Singh (Supra) on reproduction reads as under: "Ordinarily we would not have entertained this writ petition as an appeal is available in a case of cancellation of licence. However, we find over here that the Judgment of this Court dated 30.10.2009 in Jagdish Narain Mishra vs. State of U.P. (Civil Misc. Writ Petition No. 28051 of 2008) has not been followed wherein the learned Judge observed as under: - "Despite advancing lengthy arguments, learned standing counsel has failed to bring to the notice of the Court any provision either under the Essential Commodities Distribution Order, 2004 or under any other Government Order issued either under the 2004 order or 1990 order empowering the Licensing Authority to cancel a fair price shop agreement merely on account of a dealer being involved in a criminal case. Hence the cancellation of the petitioner's agreement on the ground of his involvement in aforesaid criminal case under the Essential Commodities Act is also unsustainable." Nothing has been brought to our attention that the said judgment has been overruled. Even otherwise, we are of the opinion that the said conclusion cannot be faulted for the reason that mere filing of a F.I.R. cannot result in holding a fair price shop owner guilty of the offences charged. If there be a conviction, then it is possible to proceed, based on the conviction and not otherwise. In case if the F.I.R. is lodged, it is still open to the respondents to proceed by leading independent evidence and statements of the persons recorded. In the instant case that has not been done. It is not possible to countenance a situation where a judgment, which is binding on the authority, is not being followed and the parties are made to seek a remedy which ordinarily they need not have to resort to if the law laid down by this Court was followed by the respondents. Considering what we have set out earlier and the Judgment of this Court in Jagdish Narain Mishra (supra), which we approve, the cancellation of the licence of the petitioner is without authority of law." 10. In the present case the appellate court has dismissed the appeal observing that the progress in the criminal case under Section 3/7 Essential Commodities Act, against the petitioner is not available on record hence appeal is rejected. In the present case the appellate court has dismissed the appeal observing that the progress in the criminal case under Section 3/7 Essential Commodities Act, against the petitioner is not available on record hence appeal is rejected. Suffice is to observe that the criminal proceedings initiated against a licensee under Section 3/7 Essential Commodites Act are altogether different from the proceedings initiated for cancellation of fair price shop license and the appeal preferred in this regard. Mere pendency of the criminal proceedings could not be a ground to dismiss the appeal preferred against the order of cancellation. 11. I am of the view that the appellate authority has erred in law in dismissing the appeal preferred by the petitioner in this regard. 12. In view of above, the writ petition is allowed. 13. The order dated 6.3.2013 passed by the opposite party no. 2, is hereby set aside. The matter is remanded back to the appellate authority to decide the appeal afresh on merit in the light of the observations made above, expeditiously, as early as possible.