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2018 DIGILAW 717 (ALL)

OM PRAKASH SINGH v. STATE OF U. P.

2018-03-27

SANGEETA CHANDRA

body2018
JUDGMENT Hon’ble Mrs. Sangeeta Chandra, J.—This writ petition has been filed by the petitioner challenging the order dated 25.6.2012 passed by Sub Divisional Magistrate, Sadar, Varanasi cancelling the fair price shop licence of the petitioner and order dated 27.7.2013 passed by Commissioner, Varanasi Division, Varanasi rejecting the Appeal of petitioner. 2. It has been submitted by the learned counsel for petitioner that initially on the basis of some First Information Report lodged in Case Crime No. 7 of 2012 under Sections 3/7 of the Essential Commodities Act at Police Station - Cholapur, District Varanasi on 18.3.2012 the fair price shop licence of the petitioner was suspended and he was asked to hand over the kerosene oil in his stock to the link shop licensee. A show-cause notice was issued to him alongwith suspension order on 20.3.2012. The petitioner submitted his reply to the said show-cause notice on 1.5.2012 in which he stated that the First Information Report had been lodged only because of enmity with the Gram Pradhan. The petitioner has distributed the kerosene oil in accordance with law and at the time when the said recovery was made of 540 litres of kerosene oil in three drums as alleged, the petitioner had carried out the distribution of kerosene oil lifted by him from the wholesale dealer on 14.3.2010 and 624.50 litres of kerosene oil was left in his stock which he handed over to the link shop licensee. No cardholders had made any complaint against the petitioner’s working. The petitioner’s fair price shop was not inspected and the stock was not physically verified from the entries made in Sale Register or Stock Register. 3. After this explanation was submitted by the petitioner, the petitioner was again issued a show-cause notice on 22.5.2012 which show-cause notice has been filed alongwith Supplementary-affidavit by the petitioner. In this show-cause notice, the Sub Divisional Magistrate, Sadar, Varanasi has said that the explanation given by was the petitioner is not in accordance with law and is not satisfactory, therefore, the licensee has been asked to submit the Stock and Sale Register of January, February and March, 2012 and also to submit explanation. 4. In this show-cause notice, the Sub Divisional Magistrate, Sadar, Varanasi has said that the explanation given by was the petitioner is not in accordance with law and is not satisfactory, therefore, the licensee has been asked to submit the Stock and Sale Register of January, February and March, 2012 and also to submit explanation. 4. It has been further submitted by the learned counsel for petitioner that the second show-cause notice dated 22.5.2012 does not mention any independent inquiry being carried out in the village concerned nor has named any of the ration cardholders of the village concerned who had complained against the petitioner. It was only required by the Licensing Authority to submit all the Registers as aforesaid and the petitioner submitted a supplementary explanation on 7.6.2012 annexing the affidavits of various cardholders dated 3.5.2012 in support of his case. 5. By the impugned order dated 25.6.2012 the Licensing Authority has cancelled the fair price shop licence of the petitioner by making observations regarding to some inquiry being held, after the explanation submitted by petitioner on 7.6.2012, in the village concerned in which the BPL, Antyodaya and APL cardholders had all complained against the petitioner regarding non supply of scheduled commodities at prescribed rate and in prescribed quantity and of keeping the Ration Cards of villagers mentioned in the eligibility list in his possession so that he can manipulate entries therein. 6. It has been mentioned in the impugned order that at the time when inspection was carried out of the village 19 APL, 13 BPL and 5 Antyodaya Cardholders had given a joint statement but the statements could not be believed as whatever they had said in support of the licensee was without any specific information being given. Whereas, there were other Ration Cardholders who had made specific allegations regarding irregularity in distribution of scheduled commodities by the licensee. 7. In paragraph - 13 of the impugned order of cancellation the details have been mentioned of double entries regarding the distribution of kerosene oil on various Ration Cards as compared to the entries in the Sale Register and a conclusion has been arrived at by the Licensing Authority on the basis of which inquiry being held behind the back of the petitioner that the petitioner has indeed been irregular in distribution of scheduled commodities. 8. 8. The learned counsel for petitioner has placed reliance upon several decisions of this Court; the details of which are as follows : (i). Smt. Niyamat Jahan v. State of U.P. and others, 2009(7) ADJ 577 ; (ii). Shakir Ali v. Commissioner, Lucknow Division, Lucknow, 2012(7) ADJ 48 (LB) (NOC); (iii). Ashok Kumar Tiwari v. State of U.P. and others: Writ -C No. 12737 of 2013 decided on 28.11.2014; (iv). Writ-C No. 53901 of 2006: Pradeep Kumar Rai v. State of U.P. and others decided on 25.11.2014; and (v). Agrawati v. State of U.P. and 2 others, 2017(2) ADJ 148 . 9. On the basis of the said judgments a submission has been made by the learned counsel for the petitioner that if the second show-cause notice issued to the petitioner on 22.5.2012 did not carry any details of names and numbers of Ration Cardholders in the village concerned, the petitioner could not be held guilty only on the basis of the documentary evidence submitted by him like Sale Register, Stock Register without giving him a copy of the inquiry report or specific charge-sheet with regard to the irregularities that have come out in the inquiry. The first show-cause notice issued to the petitioner was with regard to three drums of kerosene oil being recovered from a light commercial vehicle and a First Information Report being lodged against the petitioner. The second show-cause notice did not mention any detail of any inquiry conducted in the village and the names of villagers complaining against such irregularities as alleged against the licensee. 10. I have gone through the impugned order and although it seems to be a detailed order mentioning the names of Ration Cardholders and entries in the Sale Register with regard to the distribution of kerosene oil to them being irregular, the said cancellation order does not disclose when the alleged inquiry was conducted in the village by which official and the date of inquiry report, if any, submitted after such alleged on the spot inspection. The second show-cause notice dated 22.5.2012 without indicating the irregularities had simply directed the petitioner to submit all documentary evidence with regard to the Sale and Stock Registers for the month of January, February and March, 2012. 11. The second show-cause notice dated 22.5.2012 without indicating the irregularities had simply directed the petitioner to submit all documentary evidence with regard to the Sale and Stock Registers for the month of January, February and March, 2012. 11. It is apparent that after such submission of the documentary evidence, irregularities might have been found in such documentary evidence on the basis of which the Licensing Authority drew a conclusion of the licensee being guilty of irregular distribution of the scheduled commodities. However, the principles of Natural Justice were not followed by indicating in the show-cause notice to the petitioner the alleged irregularities. The Appellate Authority while considering the Appeal of the petitioner has merely reiterated the fact of recovery of 540 litres of kerosene oil in three drums from a light commercial vehicle namely Tata Magic U.P. 65 BT 2393 and has more or less repeated the version mentioned by the Licensing Authority regarding the irregularities in distribution by the Licensing Authority although in a somewhat different language. The impugned orders not being passed in accordance with law are set aside. The matter is remanded to the Licensing Authority with the direction to supply a copy of the inquiry report of the alleged inquiry/on the spot inspection of the village in question being carried out after the petitioner submitted his supplementary reply dated 7.6.2012. 12. The Licensing Authority shall furnish a copy of the inquiry report as well as a fresh show-cause notice in this regard to the petitioner indicating the allegations made by the various Cardholders against the petitioner in the said on the spot inspection including the details of Ration Cards within one week from the date a certified copy of this order is produced before him. 13. The petitioner shall submit his reply within 15 days of receipt of such show-cause notice. The Licensing Authority shall thereafter examine the reply of petitioner and make necessary verification from the Sale and Stock Registers of the petitioner including the Distribution Certificates, if any, and the entries made in the Ration Cards and pass appropriate orders thereon within a period of six weeks thereafter. 14. It is clarified that the current procedure being followed for distribution of scheduled commodities shall continue for a period of eight weeks or till final orders are passed by the Licensing Authority whichever is earlier. 15. The writ petition is partly allowed.