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2017 DIGILAW 503 (ALL)

Aash Mohammad v. Commissioner Moradabad Region

2017-02-10

SURYA PRAKASH KESARWANI

body2017
JUDGMENT Surya Prakash Kesarwani,J. Heard learned counsel for the petitioner, learned StandingCounsel for the State-respondents and learned counsel for respondent no. 3-Gram Sabha. Petitioner is a fair price shop agent of village Kajipura, VikasKhandDilari, Tehsil Thakurdwara, District Moradabad. His fair price shop agreement was cancelled by the respondent no. 2 by order dated 19.11.2016 against which he filed an appeal along with stay application being Appeal No. C-201613001771 before the Commissioner, Moradabad Division, Moradabad. His stay application was rejected by the appellate authority by the impugned order dated 22.12.2016 merely observing that on perusal of the order of cancellation, prima-facie there does not appear any justification to grant interim relief and therefore, stay application is rejected. No reason, whatsoever, even in brief has been assigned in support of prima-facie case. Perusal of the order of cancellation dated 19.11.2016 prima-facie indicates that the fair price shop agreement of the petitioner was cancelled on three grounds namely: (i) APL card holders namely Sri Kalua and others have complained that the petitioner does not distribute kerosene oil; (ii) Double ration cards of six entitled households are in existence on which the petitioner has shown distribution of essential commodities; and (iii) The behaviour of the petitioner with the card holders is bad. From the order of cancellation itself it is prima-facie evident that the petitioner, in reply to the first ground of cancellation, clearly stated that the aforesaid Sri Kalua is the husband of village Pradhan and other complainants are his men who themselves have not taken kerosene oil and he has distributed kerosene oil to all other card holders. The respondent no. 2 has not addressed even a single word to show application of mind on the reply of the petitioner in this regard. With respect to the second ground of cancellation, it appears from the order itself that the petitioner has clearly stated that the cards of alleged entitled households are not attached to his fair price shop rather the same have been attached to the fair price shop of another agent namely Smt. Nasreen. The order of cancellation further reveals that the respondent no. 2 has neither verified this fact nor recorded any finding based on any relevant material that the alleged entitled households allegedly having double ration cards were attached with the fair price shop of the petitioner or the fair price shop of Smt. Nasreen. The order of cancellation further reveals that the respondent no. 2 has neither verified this fact nor recorded any finding based on any relevant material that the alleged entitled households allegedly having double ration cards were attached with the fair price shop of the petitioner or the fair price shop of Smt. Nasreen. That apart, there is no disclosure of fact in the order of cancellation that what action has been taken for cancellation of such double ration cards, if actually there were double ration cards. The third ground of cancellation is vague. The allegation was made in the charge sheet by the respondent no. 2 which prima-facie could not be substantiated by any evidence on record. The afore noted facts, emerging from the order of cancellation itself, clearly reveals that the petitioner has made out a prima-facie case for grant of interim relief. However, the Divisional Commissioner has rejected the stay application merely observing that on perusal of all the facts, prima-facie there is no justification to grant stay and as such stay application is rejected. Thus, the impugned order rejecting the stay application is not based on consideration of the settled principles of law with regard to grant of interim relief namely prima-facie case, balance of convenience and irreparable loss. In view of the above discussion, I find that the petitioner has made out a prima-facie case and the balance of convenience lies in his favour and as such the impugned order dated 22.12.2016 passed by the respondent no. 1, to the extent of rejection of the stay application, is hereby quashed. The stay application of the petitioner is allowed and the operation of the order of cancellation dated 19.11.2016 is hereby stayed till disposal of the appeal pending before respondent no. 1. It is further directed that the respondent no. 1 shall decide the appeal of the petitioner, expeditiously, in accordance with law, preferably within two months from the date of presentation of a certified copy of this order, after affording reasonable opportunity of hearing to the petitioner and without granting any unnecessary adjournment. The appeal shall be decided by the respondent no. 1 without being influenced by any of the observations made in the body of this order. With the aforesaid directions, the writ petition is disposed of.