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2017 DIGILAW 196 (UTT)

Islam v. District Supply Officer

2017-03-29

ALOK SINGH, K.M.JOSEPH

body2017
JUDGMENT K.M. Joseph, J. 1. This is an appeal filed on the basis of leave granted by this Court. The writ petitioner filed the writ petition challenging the order passed by which the licence of the writ petitioner for running a fair price shop was suspended. The learned single Judge held as follows: "2. Brief facts of the case, as narrated in the writ petition, are that the petitioner is running a fair price shop at village Ransura Block Bahadrabad Tehsil & District Haridwar. He distributed the essential commodities to the concerned villagers as per norms prescribed. Petitioner was surprised to receive the order dated 25.11.2016 by the District Supply Officer, Haridwar by which license of petitioner's shop was suspended on ground of alleged inquiry conducted by Tehsildar, Haridwar. It is submitted that before passing of impugned order dated 25.11.2016, the respondent without providing an opportunity to participate in the alleged inquiry, suspended the fair price shop licence of the petitioner. It is submitted that there is no record or evidence that petitioner has not made proper entries in the Ration Card and misbehaved with the card holders. It is submitted that as per clauses 9 and 12 of the Government Order dated 15.10.2005, it is specifically prescribed for the shops situated in any Gram Sabha area that the complaint for alleged irregularity and illegality committed by the license holder of the fair price shop, shall be referred to the administrative committee of the Gram Panchayat. Alleged inspection done by the administrative committee of the Gram Panchayat or material collected by the administrative committee of the Gram Sabha shall be placed before the general house of Gram Sabha wherein appropriate decision shall be taken by the Gram Panchayat as per majority. Decision so taken by the Gram Panchayat shall be placed before the Deputy Collector by the Village Development Officer whereupon Deputy Collector after inquiry may pass appropriate order for suspension or cancellation of the license to run fair price shop. It is submitted that the order impugned is illegal as such the respondent failed to appreciate the fact that petitioner has misused or committed any irregularity. 4. Learned Standing Counsel fairly submitted that in this matter, inquiry was conducted by the Naib Tehsildar and as per the Government Order, the inquiry should have been conducted by the District Supply Officer or Sub Divisional Magistrate. 4. Learned Standing Counsel fairly submitted that in this matter, inquiry was conducted by the Naib Tehsildar and as per the Government Order, the inquiry should have been conducted by the District Supply Officer or Sub Divisional Magistrate. He fairly submitted that this case is squarely covered by the judgment passed by this Court on 10.04.2012 in Writ Petition No. 602 of 2012 (M/S) 5. Considering the fact that before passing the order impugned the provisions of the Government Order dated 15.10.2005 have not been followed and also considering the submission of the counsel for the parties that present case is squarely covered by the judgment passed on 10.04.2012 in Writ Petition No. 602 of 2012 (M/S.), I allow the writ petition, set aside the order dated 25.11.2016. However, liberty is given to the District Supply Officer to pass fresh order after conducting inquiry either by himself or by the Sub Divisional Magistrate concerned as provided in the Government Order." We heard Mr. Jitendra Chaudhary, learned counsel for the appellant; Mr. Nagesh Agarwal, learned counsel on behalf of the writ petitioner; and Mr. Paresh Tripathi, learned Chief Standing Counsel for the State. 2. Learned counsel for the appellant would draw our attention to the judgment of the Apex Court passed in Civil Appeal No. 9028 of 2014. The same reads as follows: "Leave granted. The appellants have challenged the order dated 20.3.2014 passed by the High Court of Uttarakhand in Civil Writ Petition No. 468 of 2013. Licence of respondent No. 1's fair price shop was cancelled on account of certain irregularities by Order dated 10.1.2013 passed by the District Supply Officer, Haridwar. He challenged the said cancellation order by filing a Writ Petition in the High Court of Uttarakhand. The appellants who are consumers were permitted to intervene in the matter. By the impugned order, the High Court set aside the cancellation of licence observing that the inquiry was conducted by Naib Tehsildar and District Supply Inspector which was contrary to the decision in Satyapal Singh v. Commission Garhwal Mandal, Garhwal and others, SA No. 25 of 2011 vide judgment dated 16.11.2011. According to the said judgment, the inquiry could only be conducted by U.P. Zila Adhikari/Deputy Collector. According to the High Court, inasmuch as the inquiry was conducted by Naib Tehsildar, it was vitiated and, therefore, the cancellation was set aside. According to the said judgment, the inquiry could only be conducted by U.P. Zila Adhikari/Deputy Collector. According to the High Court, inasmuch as the inquiry was conducted by Naib Tehsildar, it was vitiated and, therefore, the cancellation was set aside. Being aggrieved by this order, the appellants who are the consumers have approached this Court. After hearing the appellants for some time, on 5.9.2014, this Court directed the Principal Secretary, Food and Civil Supplies Department to remain present in the Court to assist us with relevant rules and files. Accordingly, the Principal Secretary, Food and Civil Supplies Department is present today. Learned Advocate General of the State of Uttarakhand is also present and he has ably assisted us in this matter. Our attention is drawn to clauses 12 and 13 of Government Order dated 15.10.2005 issued by the Secretary, Uttaranchal Government which read thus: (12) Apart from Gram Sabha, the Collector, Additional Collector, District Supply Officer and Deputy Collector vide their own motion or upon receiving complaints etc. can inquire into the activities of shop owner of ration shop and in case of serious irregularities, these officers also can pass orders of suspension/cancellation of the shops and such orders shall be binding on gram sabha and shop owner. (13) The officials of Department of Food and Civil Supply and Department of Revenue as posted, can, under the Uttaranchal Scheduled Commodities Distribution Order, 2003 or the officer/employees posted in rural areas and authorized by collector can inquire into the affairs of ration shops, and also supervise the public distribution system regularly and upon irregularities discovered, they would inform the officers concerned of the District Administration and Gram Sabha so that appropriate proceedings can be initiated. It is pertinent to note that as per clause 13, the officer/employees posted in rural areas and authorized by collector can inquire into the affairs of ration shops and also supervise the public distribution system regularly and upon irregularities discovered, they have to inform the officers concerned of the District Administration and Gram Sabha so that appropriate proceedings can be initiated. This clause needs to be read along with clause 2(f) of the Uttaranchal Scheduled Commodities Distribution Order, 2003 which defines Food Officer as such: 'Food Officer' means the Food Commissioner, Additional Food Commissioner, Deputy Food Commissioner, Assistant Food Commissioner, Regional Food Controller, District Magistrate, Additional District Magistrate, District Supply Officer, Deputy town and Rationing Officer and Area Rationing Officer or any other officer authorized by State Government in this behalf and includes, Sub-Divisional Magistrate, City Magistrate, Tehsildar and Naib Tehsildar of their respective jurisdiction or any other officer authorized by the State. Naib Tehsildar authorized by the State Government is, therefore, according to this clause a Food Officer. It is pointed out to us that Naib Tehsildar was authorized by the State Government. In our opinion, therefore, it was perfectly legal for the Local Naib Tehsildar to conduct the inquiry and submit his report. We are informed by learned Advocate General that the cancellation has been done by the District Supply Officer, Haridwar who is the competent authority, as per clause 12 of the Government Order dated 15.10.2005. In view of this, we set aside the impugned order. We notice that learned single Judge has not decided the matter on merits. We, therefore, remit the matter to learned single Judge and request the learned single Judge to adjudicate the merits of the case after hearing all concerned. All questions on merits are left open. The Civil Appeal is disposed of in the afore-stated terms." 3. Therefore, he would submit that no longer the reasoning of the learned single Judge survives. There can be no dispute that, after the decision of the Supreme Court, the reasoning of the learned single Judge based on lack of competence of the Naib Tehsildar cannot survive. 4. Learned counsel for the writ petitioner would submit that the writ petitioner also has a case that no notice was issued to him and the inquiry, therefore, is vitiated. No doubt, learned Chief Standing Counsel would point out that the order would show that the writ petitioner did appear before the Naib Tehsildar and his statement was recorded. He also would submit that the writ petitioner did not have such a case. However, there is no counter affidavit filed. It is a case, where, in fact, counter-affidavit was not called for by the learned single Judge. He also would submit that the writ petitioner did not have such a case. However, there is no counter affidavit filed. It is a case, where, in fact, counter-affidavit was not called for by the learned single Judge. In such circumstances, we are of the view that this aspect should receive consideration at the hands of the learned single Judge. The reasoning of the learned I single Judge cannot be sustained in the light of the judgment passed by the Apex Court. Consequently, the appeal is allowed; the judgment passed by the learned single Judge is set aside; and the matter will go back to the learned single Judge so that, after filing of the counter-affidavit, the issue relating to noncompliance with natural justice and not holding inquiry against the writ petitioner, alone, can be gone into by the learned single Judge. For the said purpose alone, the matter is remitted back. It will be open to the respondents to file counter-affidavit in the matter. If need arises, appellant may move for intervening or being impleaded in the writ petition. Appeal Allowed.