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Allahabad High Court · body

2017 DIGILAW 1044 (ALL)

VIJAY KUMAR v. STATE OF U. P.

2017-04-19

SUNITA AGARWAL

body2017
JUDGMENT Hon’ble Mrs. Sunita Agarwal, J.—Original record produced by the learned Standing Counsel have been perused. 2. A perusal thereof indicates that the shop in question was inspected on 8.7.2014. During the course of inspection, the stock register was produced by the fair price shop dealer. The stock was found complete as per the entries in the stock register. For distribution of scheduled commodities 7.7.2014 was the date fixed and it was found that the scheduled commodities were distributed by the fair price shop dealer in accordance with rules. Only allegation against the fair price shop dealer was for black marketing of the kerosene oil. In this regard the allegations have been made that on 7.7.2014 he lifted 1900 litres of kerosene oil. On 8.7.2014 during the course of inspection the stock was found short by 1350 litres. It was considered that as per the statement of the licence holder, distribution was made to 50 card holders by the said date and, therefore, there could be only 100 litre short from the total quantity of kerosene oil lifted by the dealer. The required stock was found short in the inspection report. 3. A perusal of the original record indicates that on 8.7.2014, Gram Pradhan namely Smt. Gulabi Devi submitted on letterhead that only 4 to 15 litres of kerosene oil was found in the shop in the course of inspection which was kept in the custody of the licence holder. 4. The recovery memo dated 8.7.2014 has been prepared by three persons namely Shyam Sundar Verma, the clerk in the supply department, Anju Kumar the Supply inspector and Sri Ram Ji Mishra. The report says that 2 drums and 50 litres of kerosene oil kept in open drum was found in the shop and 1350 litres had been black marketed by the licence holder. However, this report does not contain the signature of the petitioner nor has been verified by the licensing authority before passing the order impugned. The record further indicates that the First Information Report was lodged on 9.7.2014. The petitioner in his reply had categorically stated that the entire proceedings had been undertaken at the instance of the then Gram Pradhan who was out and out to get the licence of the petitioner cancelled. 5. The record further indicates that the First Information Report was lodged on 9.7.2014. The petitioner in his reply had categorically stated that the entire proceedings had been undertaken at the instance of the then Gram Pradhan who was out and out to get the licence of the petitioner cancelled. 5. Record further indicates that another undated letter has been submitted by the Gram Pradhan bearing signatures of some card holders to state that they were facing difficulty on account of attachment of the shop within the another shop. The shop in question was requested to be allotted to some other fair price dealer by a resolution of the Gram Sabha. 6. There exists another undated letter on Gram Pradhan Gulabi Devi which appears to have been received on 3.9.2014 by the Additional District Magistrate (Finance and Revenue). It was forwarded with the direction to conduct enquiry into the matter.ýÿ 7. On 3.9.2014 the order of cancellation of fair price shop licence of the petitioner was passed on the sole allegations of black marketing of kerosene oil. 8. The explanation offered by the petitioner has been rejected only in one line by saying that it was not satisfactory. It is also recorded by the licensing authority that several card holders gave application to the District Magistrate to the extent that they were not satisfied with the behaviour and the manner of distribution made by the petitioner. 9. Aggrieved the petitioner filed an appeal. Similar stand was taken in appeal, however, the Appellate Court did not examine the matter independently and upheld the cancellation order. 10. A careful perusal of the record indicates that no effort has been made by the licensing authority to satisfy itself about the veracity of the recovery memo dated 8.7.2014 which records that kerosene oil on the spot was found short. The stock register submitted by the petitioner showing the stock available in the shop on the date of inspection has not been verified. 11. The inspection memo dated 8.7.2014 though has been prepared by a team but does not contain the signature of the petitioner. It is also not written in the said memo that the petitioner had refused to sign the said document. 11. The inspection memo dated 8.7.2014 though has been prepared by a team but does not contain the signature of the petitioner. It is also not written in the said memo that the petitioner had refused to sign the said document. The said recovery memo, therefore, cannot be said to have been prepared on the spot rather it appears to have been prepared as an after-thought by the inspection team after leaving the shop. 12. The categorical objection of the petitioner regarding the veracity of the allegations in the inspection memo have not been examined at all. No other evidence was on the record to substantiate that the petitioner had black marketed the kerosene oil and it was short in the stock on the date of inspection. 13. The Full Bench of this Court in case of Puran Singh v. State of U.P. and others, 2010(3) ADJ 659 (FB), has held after considering the Government order dated 29.7.2004 that a detail enquiry is required to be undertaken by the licensing authority and the order of cancellation cannot be passed merely on the basis of report. There can be no dispute with regard to the fact that the report which was submitted by the inspection team was to be verified by the licensing authority. Both the licensing authority and the appellate authority have erred in not adhering to the procedure. The charges levelled proved against the petitioner on the basis of inspection report have not been brought home by leading cogent evidence. 14. In view of the above this Court is of the view that the entire proceedings have been undertaken at the instance of the then sitting Gram Pradhan and the authorities had acted at her behest in cancelling the fair price shop licence of the petitioner. 15. For the above noted reasons, the orders dated 3.9.2014 and 26.9.2014 passed by respondent No. 4 and the order dated 22.11.2014 passed by respondent No. 2 cannot be sustained. Both the orders are hereby set aside. 16. The writ petition is allowed. 17. The authorities are directed to restore the fair price shop of the petitioner forthwith. The respondents or any other person shall be restrained from interfering in running of the shop by the petitioner.