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2017 DIGILAW 568 (ALL)

SANGEETA DEVI v. STATE OF U. P.

2017-02-17

SURYA PRAKASH KESARWANI

body2017
JUDGMENT Hon’ble Surya Prakash Kesarwani, J.—Heard learned counsel for the petitioner, learned Standing Counsel for the State-respondents and learned counsel for respondent No. 4-Gram Sabha and with their consent, this writ petition is being finally heard without calling for the counter-affidavit. 2. The petitioner has filed this writ petition challenging the order dated 31.12.2013 cancelling her fair price shop agreement, the order dated 22.5.2015 dismissing the appeal for non prosecution and the order dated 22.12.2016 rejecting the delay condonation application for restoration of the case. 3. Submission of learned counsel for the petitioner is that there were absolutely no evidence for non distribution of essential commodities to card holders by the petitioner. The petitioner had regularly filed monthly certificates for distribution of commodities which were not disbelieved. On 21.9.2013 the petitioner had gone to deposit the amount for food grains in the Bank since the last date for deposit was 22.9.2013 which was Sunday. Since on Saturday the Bank was open only till 12.00 ‘O’ Clock and therefore, the petitioner could not appear at the time of alleged inspection. The petitioner had no concern with 25 quintals wheat shown by the authorities to have been recovered from Tata 207 vehicle bearing Registration No. U.P. 83 K 9106 which was recovered at the instance of the complainant Sri Virendra who has personal enmity with the petitioner and against whom a first information report under Section 307 IPC was lodged by the petitioner and the trial was going on. There was no independent witness at the time of the alleged recovery of the aforesaid 25 quintals wheat. Neither any card holder has complained for any irregularity or illegality in distribution of essential commodities by the petitioner nor statement of any card holder or villager was recorded by the authorities in support of their conclusion that the petitioner indulged in black marketing of the essential commodities or non distribution to card holders of the village. It is further submitted that the petitioner was prevented by sufficient cause for non appearance on 22.5.2015 fixed in the appeal before the respondent No. 2 and there was also sufficient cause for delay in filing the restoration application. The statement of facts made in the delay condonation application could not be disputed by the respondents. The respondent No. 2 rejected the delay condonation application without there being any evidence on record to disbelieve the contentions. The statement of facts made in the delay condonation application could not be disputed by the respondents. The respondent No. 2 rejected the delay condonation application without there being any evidence on record to disbelieve the contentions. The respondent No. 2 has passed an unreasoned order for rejection of the delay condonation application and the restoration application. The petitioner has very good case on merit and yet she could not get justice, although she is pursuing the matter since last four years. It is further submitted that looking into the facts and circumstances of the case and there being absolutely no evidence on record and the impugned order dated 31.12.2013 passed by the respondent No. 3 being not based on any evidence, deserves to be quashed. 4. Learned Standing Counsel as well as learned counsel for the Gram Sabha support the impugned order but they fairly admit that neither there was any independent witness at the time of alleged inspection dated 21.9.2013 showing recovery of 25 quintals wheat nor during inquiry proceedings statement of any card holders/villagers were recorded to find out any non distribution of essential commodities by the petitioner. 5. I have carefully considered the submissions of learned counsels for the parties. 6. Briefly stated facts of the present case are that the petitioner was a fair price shop agent of village Thakurdwara, Tehsil Sadar, District Rampur. According to the State-respondents on 21.9.2013 on the information of the complainant Sri Virendra son of Dera Singh resident of Village Thakurdwara, the Revenue Inspector and the Nayab Tehsildar reached at about 8.00 a.m. in the village Thakurdwara and in the way intercepted a Tata 207 vehicle bearing Registration No. U.P. 83 K 9106 in which 25 quintals wheat was loaded. They brought the driver and three other persons sitting in the vehicle back to the village Thakurdwara. As per information given by the complainant, they reached at the fair price shop of the petitioner. The complainant resides just in front of the fair price shop of the petitioner. The persons sitting in the vehicle allegedly confirmed that they have purchased some wheat from the business place of the petitioner. The aforesaid wheat was seized and FIR under Section 3/7 of Essential Commodities Act was lodged with the concerned police station. However, no independent witness was shown in the entire episode. The persons sitting in the vehicle allegedly confirmed that they have purchased some wheat from the business place of the petitioner. The aforesaid wheat was seized and FIR under Section 3/7 of Essential Commodities Act was lodged with the concerned police station. However, no independent witness was shown in the entire episode. The respondent No. 3 also reached at the spot and got the fair price shop opened in the absence of the petitioner who had gone at that time to deposit the money in the Bank for essential commodities on 21.9.2013 which was Saturday and the last date for deposit was 22.9.2013 which was Sunday. According to the State-respondents, no sale or stock register was found from the fair price shop and stock of merely 7 kattas wheat and 1 katta rice was found. On these allegations, a show-cause notice was issued to the petitioner by the respondent No. 3 which was replied by the petitioner but the explanation submitted by the petitioner was not accepted by the respondent No. 3 and her fair price shop license was cancelled by order dated 31.12.2016. Aggrieved with this order, petitioner filed Appeal No. C-2014130000/98 before the respondent No. 2 which was dismissed for non prosecution by order dated 22.5.2015. The petitioner filed a restoration application alongwith delay condonation application which was rejected by the impugned order dated 22.12.2016. Aggrieved with these orders, the petitioner has filed the present writ petition. Perusal of the impugned order dated 31.12.2013 clearly shows that the recovery of wheat from Tata 207 vehicle bearing Registration No. U.P. 83 K 9106 was made on the complaint of the aforesaid Sri Virendra son of Dera Singh with whom the petitioner has enmity and had lodged against him an FIR being Case Crime No. 431A/12 under Section 307/504 IPC and trial is pending in the Court at Rampur. No independent witness was present at the time of alleged seizure of wheat or alleged inspection of the shop on 21.9.2013. The complainant Sri Virendra resides in front of the fair price shop of the petitioner. The petitioner has completely denied any concern with the seized wheat in question. In the impugned order, the respondent No. 3 had not mentioned even a single reliable evidence in support of alleged wheat to be belonging to the fair price shop of the petitioner. The complainant Sri Virendra resides in front of the fair price shop of the petitioner. The petitioner has completely denied any concern with the seized wheat in question. In the impugned order, the respondent No. 3 had not mentioned even a single reliable evidence in support of alleged wheat to be belonging to the fair price shop of the petitioner. Thus, the findings of respondent No. 3 with regard to the recovery of the alleged 25 quintals wheat to be of the fair price shop of the petitioner, is based on no evidence. 7. The second ground of cancellation against the petitioner mentioned in the impugned order by the respondent No. 3 is to the effect that sale register and stock register were not found when the inspecting team opened the fair price shop and the stock of essential commodities found were merely 7 kattas wheat and 1 kg rice. The petitioner has explained the reasons for her absence on 21.9.2013 at the time of alleged inspection based on documentary evidence of deposit receipt in the Bank for food grains on 21.9.2013 which was Saturday. She explained that since 22.9.2013 was Sunday and the banking hours on Saturday was upto only 12.00 ‘O’ Clock and therefore, she had gone to deposit the amount in the Bank on that day. In her explanation, she clearly stated that the total stock available in the shop was 12 kattas wheat, 2 kattas rice, 20 kg sugar and 159 litres Kerosene Oil which are still available and may be well verified from the stock register. However, the respondent No. 3 has not verified it and instead merely observed that if the stock register would have been available at the time of inspection then the stock could have been verified and now the stock has been shown after manipulation. He has not mentioned in the order that which entry in the stock register is the result of manipulation. It is admitted fact of the case that the shop of the petitioner was got opened by the authorities in her absence and justification of her absence is well founded. There was absolutely no independent witness in the entire episode. He has not mentioned in the order that which entry in the stock register is the result of manipulation. It is admitted fact of the case that the shop of the petitioner was got opened by the authorities in her absence and justification of her absence is well founded. There was absolutely no independent witness in the entire episode. Non presence of any independent witness becomes more important under the facts and circumstances of the case due to presence of the complainant and his role in the matter with whom the petitioner has enmity and had lodged the FIR under Section 307/504 IPC and trial is going on. Therefore, recovery of quantity of food grains shown by the inspecting team is unbelievable. Despite request of the petitioner, the State authorities have not verified the stock of essential commodities. Consequently, the allegation of lesser stock found in the alleged inspection cannot be accepted. Thus, the second ground taken by the respondent No. 3 in the impugned order also deserves rejection. 8. The third ground and the conclusion drawn by respondent No. 3 in the impugned order dated 31.12.2013 is that the petitioner had black marketed the essential commodities and thus contravened the terms of agreement. This finding and the conclusion drawn by respondent No. 3 in the impugned order is wholly baseless and without any evidence on record. There is no finding in the impugned order that any card holder has made any complaint against the petitioner with regard to non distribution of essential commodities in the prescribed quantity and at the prescribed rates. The respondent authorities have also not recorded statements of any card holders or the villagers with respect to non distribution or lesser distribution of essential commodities by the petitioner from her fair price shop. The petitioner had submitted monthly distribution certificates evidencing that the essential commodities as received were distributed as per norms. Genuineness and correctness of the certificates has not been doubted. Thus, there was absolutely no evidence against the petitioner to indicate that the petitioner has either not distributed the essential commodities in prescribed quantity to card holders or she charged price over and above the rates prescribed. Thus, the third ground for cancellation of fair price shop agreement mentioned in the impugned order by the respondent No. 3 has no legs to stand. 9. Thus, the third ground for cancellation of fair price shop agreement mentioned in the impugned order by the respondent No. 3 has no legs to stand. 9. So far as the rejection of the delay condonation application filed in support of restoration application and the rejection of restoration application of the petitioner by the appellate authority is concerned, it is relevant to note that the petitioner has sufficiently explained the delay and also shown sufficient cause for non appearance on 22.5.2015. The appellate authority has merely observed that no justifiable reason has been shown for delay. However, he completely failed to record that what justifiable reason has not been shown in the delay condonation application. Thus, the order rejecting the delay condonation application and the restoration application is without reason and therefore, cannot be sustained. 10. In view of the aforesaid, the impugned orders dated 31.12.2013 passed by respondent No. 3 cancelling the fair price shop agreement of the petitioner, the order dated 22.5.2015 dismissing the appeal in default and order dated 22.12.2016 rejecting the delay condonation application and restoration application are hereby quashed. Since the order dated 31.12.2013 has been quashed by this Court and as such the appeal of the petitioner also stand allowed. In view of the aforesaid, the writ petition is allowed as indicated above.