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2016 DIGILAW 3701 (ALL)

Anil Kumar Singh v. State of U. P

2016-11-11

ANIL KUMAR

body2016
JUDGMENT Anil Kumar, J. Heard Sri Arun Kumar, learned counsel for petitioner, Sri Siraj Hasan, learned State counsel and perused the record. 2. By means of the present writ petition, the petitioner has challenged the impugned order dated 10.03.2016 passed by respondent No. 2 and order dated 12.11.2014 passed by respondent No. 3 as contained as Annexure Nos. 1 & 2 to the writ petition respectively. 3. Facts in brief of the present case are that petitioner has been granted a licence by way of an agreement to run fair price shop at village & post - Kakori Kalan, Block - Miyaganj, Tehsil - Hasanganj, Tehsil - Hasanganj, District Unnao under Public Distribution System. 4. Thereafter, in the year, 2011 some complaints have been made against the petitioner in regard to distribution of the essential commodities to the card holders. So, he was asked to submit reply and he has submitted his reply to the Licensing Authority/Sub-Divisional Magistrate, Tehsil - Hasanganj, Unnao and by order dated 12.11.2014 (Annexure No. 2) passed by Sub-Divisional Magistrate, Tehsil - Hasanganj, Unnao agreement to run the fair price shop has been cancelled. 5. Aggrieved by the said order, petitioner filed an appeal and the same has been dismissed by order dated 10.03.2016 by respondent No. 2 without assigning any reason whatsoever, accordingly, he challenged the impugned order of cancellation as well as appellate order. 6. Learned counsel for petitioner while challenging the impugned order submits that from the bare perusal of the same, the position which emerged out that impugned order was passed on the direction given by a letter/order dated 09.10.2014 of respondent No. 1 to the District Magistrate, Unnao to cancel the licence/agreement of the petitioner to run the fair price shop. 7. Learned counsel for petitioner while challenging the impugned order submits that from the bare perusal of the same, the position which emerged out that impugned order was passed on the direction given by a letter/order dated 09.10.2014 of respondent No. 1 to the District Magistrate, Unnao to cancel the licence/agreement of the petitioner to run the fair price shop. 7. He further submits that in the present case, the agreement of the petitioner to run fair price shop has been cancelled by the Licencing Authority without application of his own mind only on the direction of the Higher Authority as per letter/ order dated 09.10.2014(Annexure No. 13), so the same is in violation of principles of natural justice, in this regard ground and plea was taken by the petitioner before the appellate authority but the same has not been considered and by means of non-speaking and unreasoned order, the appeal has been dismissed.So, impugned orders dated 10.03.2016 passed by respondent No. 2 and 12.11.2014 passed by respondent No. 3 are liable to be set aside. 8. Learned State counsel while supporting the impugned orders submits that in the present case as there is a complaint in regard to irregularity made by the petitioner while distributing the essential commodities from his fair price shop, so the agreement of the petitioner to run fair price shop was cancelled taking into consideration the direction issued by respondent No. 1 in the matter in question, so there is no illegality or infirmity in the impugned orders. 9. I have heard learned counsel for parties and perused the record. 10. From the perusal of the impugned order dated 12.11.2014 passed by respondent No. 3, the position which emerged out is that the same has bee passed merely on the basis of letter/order dated 09.10.2014 of respondent No. 3 by which a direction has been given to District Magistrate, Unnao to cancel the agreement of the petitioner to run the fair price shop as he has violated the terms and conditions of the agreement and in this regard necessary information be sent within 15 days to the said authority and in view of the said direction respondent No. 3 has passed the same without giving adequate opportunity to the petitioner to defend his case. 11. 11. Thus, the impugned order of cancellation of the agreement of the petitioner to run fair price shop has been passed without application of his mind only on the direction given by higher authority, so the same is in violation of principles of natural justice as well as the law laid down by a Division Bench of the Court by order dated 05.08.2010 passed in Writ Petition No. 6909 (MB) of 2010 (Awadhesh Singh Vs. State of U.P. & others), held as under: - "Sri Raghavendra Singh, learned Senior Counsel for the petitioner assailing the impugned order of suspension of the fair price shop of the petitioner, submits that it is a clear case of political interference in the matter. The impugned order has been passed on extraneous consideration, under the dictates of the Principal Secretary to the Chief Minister, U.P, as is evident by the letter dated 03.05.2010 addressed by the Enquiry Committee to the Commissioner, Food & Civil Supply, Lucknow. He relying upon the case, reported in A.I.R, 1970 SC 1896, Purtaspur Co. Ltd. Vs. Cane Commissioner, Bihar, submits that no complaint has been enquired into by the Sub-Divisional Officer, who is the authority competent to take any such decision, but merely on the directives issued by superior authority the actions have been taken. We, also take notice of the plea that the competent authority, who can pass the order and take action against a dealer of fair price shop is the Sub-Divisional Magistrate or the District Supply Officer, as the case may be. Normally, if a complaint is made against any fair price shop dealer, such an officer shall look into the matter, and in case, he prima-facie finds that the dealer has committed breach in the performance of his functions, then he can suspend the agreement and accordingly proceed with the matter. But in the instant case, we, find that it was because of the directive issued by the Principal Secretary to the Chief Minister, who directed the Commissioner, Food and Civil Supply, Lucknow to take action on the complaints said to have been established, that the order of suspension of the fair price shop of the petitioner has been passed, because of lodging the first information report against him under Section 3/7 of the Essential Commodities Act. The action taken by the Sub-Divisional Magistrate solely on the direction of the superior authority, that too the Principal Secretary to the Chief Minister, firstly does not leave any discretion to the competent authority to take an independent view on the complaints, if any, and secondly, the complaints/allegations of non supply of essential commodities as per the norms to certain card-holders could not have been enquired into by the superior authority, so as to enable him to issue directions for taking suitable actions. The impugned order having been issued by the S.D.M, without application of his own mind, merely because of the directive issued by the Principal Secretary to the Chief Minister and the Commissioner, Food & Civil Supplies, thus can not be sustained. We, under the circumstances, quash the orders dated 2.7.2010, 15.7.2010 and 22.7.2010 passed by the respondents with liberty to the Sub-Divisional Magistrate to make necessary enquiry against the complaints so made, and in case he finds the allegations made in the complaints prima-facie correct, he can pass fresh orders in accordance with law. The writ petition stands allowed" 12. For the foregoing reasons, the impugned orders dated 10.03.2016 passed by respondent No. 2 and 12.11.2014 passed by respondent No. 3 are liable to be set aside. 13. Accordingly, Writ Petition is allowed. Impugned orders dated 10.03.2016 passed by respondent No. 2 and 12.11.2014 passed by respondent No. 3 are set aside and the matter is remanded back to the Licensing Authority/Sub-Divisional Magistrate, Tehsil - Hasanganj, Unnao to proceed afresh after giving amble opportunity to the petitioner to put forward his case.