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2016 DIGILAW 2821 (ALL)

Ambrish Kumar Misra v. Additional Commissioner (Food) Devi Patan Mandal Gonda

2016-08-16

RITU RAJ AWASTHI

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JUDGMENT Ritu Raj Awasthi, J. Heard learned counsel for the petitioner as well as learned Standing Counsel and perused the records. 2. The writ petition has been filed challenging the order dated 28.6.2011 as well as order dated 27.1.2012, whereby agreement of fair price licence of petitioner has been cancelled and the appeal preferred against the said order has been dismissed. 3. Learned counsel for the petitioner submits that the order impugned has been passed in most arbitrary and illegal manner and in gross violation of principles of natural justice. The petitioner was neither provided the relevant documents, such as, enquiry report i.e. surprise inspection report nor statements of Antyodaya card holders. He was also not provided the adequate opportunity of defence by the competent authority before passing the order of cancellation of agreement of fair price shop licence of petitioner. 4. It is submitted that on the direction of Commissioner, Food & Civil Supplies Inspection Committee had inspected the fair price shop in absence of petitioner and had recorded alleged statements of some Antyodaya card holders. On the basis of the report submitted by the Inspection Committee the Commissioner, Food & Civil Supplies had issued direction pursuant to which the competent authority had suspended the fair price shop licence of the petitioner. The petitioner failing aggrieved had preferred an appeal before the Additional Commissioner, Devi Patan Mandal, Gonda which was disposed of directing the competent authority i.e. Sub Divisional Magistrate concerned to provide opportunity of filing reply to the charge sheet and thereafter decide the matter on merit within one month. It is submitted that before the order dated 15.6.2011 passed in appeal could be served the competent authority by impugned order dated 28.6.2011 had cancelled the agreement of fair price shop licence of the petitioner. It is further submitted that the appeal preferred against the said order has been rejected by opposite party no.1 in a very hurried manner without application of mind. 5. Learned Standing Counsel was directed to produce the records. The records have been produced before the Court. The counter affidavit has also been filed by the opposite parties. 6. Learned Standing Counsel submits that the Commissioner, Food & Civil Supplies had constituted a team to inspect the fair price shop in sixteen different development blocks of District Gonda. The Inspection Committee had inspected the fair price shop of petitioner on 25.2.2011. The counter affidavit has also been filed by the opposite parties. 6. Learned Standing Counsel submits that the Commissioner, Food & Civil Supplies had constituted a team to inspect the fair price shop in sixteen different development blocks of District Gonda. The Inspection Committee had inspected the fair price shop of petitioner on 25.2.2011. The Committee had also recorded the statement of APL card holders. Considering the report submitted by Inspection Committee the Commissioner, Food & Civil Supplies had directed the competent authority to initiate proceedings for cancellation of fair price shop licence of the petitioner. It was pursuant to the said direction that the fair price shop of petitioner was suspended and a show cause notice was issued to the petitioner and he was also given a charge sheet. The charges made against the petitioner were found to be proved and, as such, by the impugned order dated 28.6.2011 the competent authority had cancelled the agreement of fair price shop licence of petitioner. It is submitted that the appellate authority has upheld the order of cancellation and rejected the appeal preferred by the petitioner. 7. I have considered the submissions made by parties' counsel and gone through the records. 8. The short question involved in this writ petition is whether the enquiry report and the statement of card holders and other materials which were considered by the competent authority while passing the order of cancellation of fair price shop licence were required to be provided to the petitioner in order to give him sufficient opportunity of defence before passing the cancellation order. 9. This Court in the case of Ram Kripal Yadav Vs. State of U.P. and others {Writ Petition No.4011 (MS) of 2010} vide judgment and order dated 5.5.2011 has held as under: - "Thus from the series of decisions, referred to hereinabove, it clearly comes out that the preliminary enquiry report, inspection report or complaint or any other document which is utilized by the authority while cancelling the licence of a fair price shop licence, same has to be supplied to the licence holder and personal hearing is also to be afforded otherwise the proceedings would be in blatant disregard of the principles of natural justice." 10. This Court in the case of Maiku Lal Vs. This Court in the case of Maiku Lal Vs. State of U.P. & others; 2009 (27) LCD 1192 has also held that the enquiry report relied by the competent authority while passing the cancellation order shall necessarily be provided to the licencee before any order of cancellation is passed. In the absence of the same order of cancellation is not sustainable in the eye of law. 11. This Court in the case of Chattar Pal Singh Vs. Commissioner, Moradabad Division and another: 2016 (34) LCD 1640 has dealt with this issue in paragraph nos.12, 13 and 14 of the judgment and has observed as under: - "12. A Full bench of this Court in the case of Puran Singh vs. State of U.P. and others (2010) 2 UPLBEC 947 has held that in case, after suspension of the agreement to run fair price shop, the authority decides to hold inquiry for cancellation of the agreement that requires full fledged inquiry, which means service of the charge-sheet, inquiry report, statements of the witnesses, copy of the complaints and other materials on which inquiry is required to be conducted. In this regard observation made by the Full Bench in paragraph no. 35, which is relevant reads as under : - "35.Para 4 and 5 of the Government Order clearly permits fulfledged enquiry pursuant to the show cause notice for cancellation and then final decision in the matter. So far the order of suspension is concerned Government Order do not provide any appeal and at the same time there was no contemplation of signing an agreement as was made obligatory pursuant to Distribution Order of 2004. 13. This Court in Abu Baker Vs. State of U.P. through Secretary (F.&S.) Government of U.P. at Lucknow and others 2010 (80) ALR 769 and Gyan Singh vs. 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 vs. 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 statement has been made basis for cancellation. 14. 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 statement has been made basis for cancellation. 14. Here from the perusal of the record as well as the stand taken in the writ petition and the counter affidavit, it is apparent that neither fresh charge-sheet was provided to the petitioner nor the copy of the inquiry report was supplied to him, in this view of the matter, there is an inherent lacking in decision making process, therefore the impugned order of cancellation cannot be sustained in the eye of law. Likewise, the appellate authority too has not examined each and every aspect of the matter, therefore order suffers from non-consideration of the legal and factual aspect of the matter. Hence, the impugned orders dated 9.1.2015 passed by the Commissioner Moradabad Division Moradabad in Appeal No. C 20141300001065 (Chhatar Pal Singh Vs. State of U.P. and others), and orders dated 14.7.2014 and 24.7.2014 including show cause notice dated 23.6.2014 issued by the Sub-Divisional Officer, Amroha cannot be sustained in the eye of law and the same are hereby quashed.The writ petition succeeds and is allowed. However the Sub-Divisional Officer, Amroha is not prevented to proceed in accordance with law and pass fresh order, if so needed. The consequences to allow the writ petition will follow and needful be done in accordance with law expeditiously but not later than four weeks from the date of receipt of certified copy of this order." 12. In the instant case the records produced before the Court by learned Standing Counsel does not contain the enquiry report, however, the perusal of impugned order clearly indicates that the order of cancellation of agreement of fair price shop licence of petitioner was passed considering the enquiry report as well as the statements of APL card holders. Since the relevant documents which were considered by the competent authority were not provided to the petitioner, as such, I am of the considered view that the order impugned i.e. order of cancellation dated 28.6.2011 is not sustainable in the eye of law. It is hereby set aside. Since the relevant documents which were considered by the competent authority were not provided to the petitioner, as such, I am of the considered view that the order impugned i.e. order of cancellation dated 28.6.2011 is not sustainable in the eye of law. It is hereby set aside. Since the order of cancellation has been set aside, the order passed in appeal dated 27.1.2012 also cannot survive. It is also hereby set aside. 13. In view of above, writ petition is allowed. 14. However, the competent authority shall pass a fresh order giving opportunity of defence to the petitioner by supplying the relevant documents such as enquiry/inspection report, statements of APL card holders etc. to the petitioner who thereafter shall submit his reply. The competent authority thereafter may take appropriate decision in accordance with law expeditiously, say within a period of three months from the date a certified copy of this order is placed before him.