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2019 DIGILAW 249 (ALL)

Shabban v. State Of U. P. Thru Secy.

2019-01-30

MAHESH CHANDRA TRIPATHI

body2019
JUDGMENT : Mahesh Chandra Tripathi, J. Heard learned counsel for the petitioner and Shri Sanjay Ram Tripathi, learned Standing Counsel. 2. The petitioner is before this Court assailing the order dated 26.04.2013 passed by third respondent by which his fair price shop license has been cancelled and also the order dated 24.10.2013 passed by second respondent dismissing the appeal in question. 3. It appears that on the basis of certain complaint and on the basis of alleged enquiry the license of the petitioner was suspended. Thereafter, an explanation from the petitioner was called and considering the same the order impugned for cancelling the license was passed and the same was approved by the appellate order. It is submitted by learned counsel for the petitioner that before cancellation of the allotment of fair price shop license in favour of the petitioner, he was not extended any opportunity and the entire action taken by the respondents is in teeth of the procedure laid down in the Government Order dated 29th July, 2004 and the U.P. Scheduled Commodities Distribution Order, 2004 (Distribution Order, 2004) and the provisions of the same had not been followed in the present case, therefore, cancellation of allotment of fair price shop license in favour of the petitioner is illegal and against the principle of natural justice. The aforesaid Government Order dated 29th July, 2004 and the Distribution Order, 2004 came up for consideration before the Full Bench of this Court in Puran Singh v. State of U.P. & Ors., 2010 (3) ADJ 659 (FB) in which it is held that in case after suspension of the agreement to run fair price shop the authority decides to hold an enquiry for cancellation of the agreement, then that requires full fledged enquiry. Relevant para 35 of the said judgment is quoted as under:- "35. Para 4 and 5 of the Government Order clearly permits full-fledged enquiry pursuant to the show cause notice for cancellation and then final decision in the matter. So far the order of suspension is concerned Government Order do not provide any appeal and at the same time there was no contemplation of signing an agreement as was made obligatory pursuant to Distribution Order of 2004." 4. So far the order of suspension is concerned Government Order do not provide any appeal and at the same time there was no contemplation of signing an agreement as was made obligatory pursuant to Distribution Order of 2004." 4. It is contended that the judgment of Puran Singh (Supra) has also been followed by this Court, while passing the order dated 28.11.2014 in Writ C No.12737/2013 and as such, full fledged inquiry is necessary before cancelling the agreement and it would require service of the charges, alongwith material in support of each charge, the information about the place and date of inquiry, the statements of persons on whose complaint inquiry was started or in a case of suo motu inquiry, the statements of the persons appearing before the Enquiry Officer. The said view has also been affirmed by this Court in Smt. Santara Devi vs. State of U.P. and others 2016 (2) ADJ 70 . 5. Learned counsel for the petitioner has also contended that in the present matter at no point of time the procedure as has been contemplated in G.O. dated 29.7.2004 has ever been adhered. In support of his submissions, he has also placed reliance on the Division Bench judgment of this Court in Gulab Chandra Ram v. State of U.P. & Ors., 2009 (2) AWC 1066 as well as judgment in Mahendra Singh v. State of U.P. & Anr., 2016 (8) ADJ 732 . Relevant para 13 of the judgment in Mahendra Singh (Supra) is quoted as under:- "It is also well settled that an order which leads to civil consequences and have passed without opportunity must be passed in conformity with the principles of natural justice. Reference may be had in State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75 ; State of Orissa v Dr. (Miss) Binapani Dei, AIR 1967 SC 1269 ; Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 ; Maneka Gandhi Vs. Union of India (1978)1 SCC 248 and D.K.Yadav Vs. J.M.A. Industries Ltd. Reported in 1993 (3) SCC 259 Canara Bank vs. V.K.Awasthy ( 2005 (6) SCC 321 ), Bidhannagar (Salt Lake) Welfare Ass. vs. Central Valuation Broad and Others ( (2007) 6 SCC 668 ) Devdutt vs. Union of India and others (2008(3) ESC 433(SC) and Suresh Singh vs. Board Of Revenue And 3 Ors. ( 2014 (5) ADJ 697 )." 6. vs. Central Valuation Broad and Others ( (2007) 6 SCC 668 ) Devdutt vs. Union of India and others (2008(3) ESC 433(SC) and Suresh Singh vs. Board Of Revenue And 3 Ors. ( 2014 (5) ADJ 697 )." 6. Learned counsel for the petitioner has vehemently contended that the certain card holders have also given statement denying any complaint against the petitioner's fair price shop and specifically asserting that forged and false complaints were made against the petitioner due to enmity. It is contended that at no point of time the said statements had been considered by the licensing authority and in most arbitrary manner the finding of fact has been recorded, which is contrary to law. 7. It is contended that the petitioner kept on lifting the quota of essential commodities as well as kerosene oil from time to time and used to distribute the same to the valid card holders attached with the fair price shop of the petitioner with utmost sincerely and honesty. The respondent authorities have not complied with the guidelines and directions given in the G.O. dated 29.7.2004. It is also contended that distribution of essential commodities as well as kerosene oil by the petitioner was being verified regularly and continuously by the authorities concerned from time to time and accordingly distribution certificates were also used to be issued in favour of the petitioner regularly. At no point of time he has violated any terms and conditions of the license nor committed any irregularity in distribution of essential commodities. 8. Per contra, learned Standing Counsel has raised an objection that so far as the argument advanced by learned counsel for the petitioner is concerned, the same is unfounded on the ground that in most cursory manner, the petitioner has responded the show cause notice and as such, the Authority, on the spot, on the basis of allegations so levelled against the petitioner, has proceeded to cancel the fair price shop license of the petitioner and the same has also been approved by the Appellate Authority. In this backdrop, he submits that once concurrent finding of fact has been recorded by both the Authorities, then there is no reason or occasion to substitute the finding recorded by both the courts' below and as such, no interference is required in the matter. 9. Heard rival submission and perused the record. 10. In this backdrop, he submits that once concurrent finding of fact has been recorded by both the Authorities, then there is no reason or occasion to substitute the finding recorded by both the courts' below and as such, no interference is required in the matter. 9. Heard rival submission and perused the record. 10. On the matter being taken up on 04.01.2019 the Court had asked learned Standing Counsel to produce the original record pertaining to cancellation of the fair price shop in question. In compliance of the aforesaid direction the original record has been produced by Shri Amit Kumar, the Supply Inspector in sealed cover and in his presence the same has been opened. 11. Most surprisingly in the present matter one Shri Ashok Arya claiming to be senior leader of Samajwadi Party on his letter pad moved an application on 16.4.2012 addressed to the Minister of Food and Civil Supplies, U.P. requesting to cancel the license of fair price shop of the petitioner. In order to appreciate the controversy in hand, it would be appropriate to reproduce the said letter, which is appended as Annexure-7 to the writ petition:- ^^lsok esa] ekuuh; ea=h th] [kk| ,o jln foHkkx] mŸkj izns'k 'kklu] y[kuÅ] egksn;] fuosnu ;g gS fd xzke vdcjiqj frxjh] ijxuk o rglhy pkaniqj tuin fctukSj xzke esa dksVk gSA yxkrkj CySd djus ds dkj.k mldh nqdku dks fuayfcr dj fn;k x;k FkkA mDr Mhyj 'kCcu cŒlŒikŒ dk lfØ; dk;ZdrkZ FkkA egksn; ls izkFkZuk gS fd lHkh xzkeh.kks o xzke iz/kku dh laLrqfr ij mDr izdj.k ij xzke vdcjiqj frxjh] ijxuk o rglhy pkaniqj ftyk fctukSj 'kCcUk dh nqdku dks fujLr djus dh d`ik djsA /kU;okn Hkonh; ¼v'kksd vk;Z½ ofj"B lektoknh ikVhZ usrk fctukSj^^ 12. In the aforesaid letter endorsement has been on 26.4.2012 by one Shri Udai Raj, Private Secretary to the Minister concerned, whereby said letter has been forwarded to the District Magistrate, Bijnor for doing the needful. Consequently, the District Magistrate vide order dated 30.04.2012 had asked Sub Divisional Magistrate, Chandpur to enquire into the matter and submit report. 13. In the aforesaid letter endorsement has been on 26.4.2012 by one Shri Udai Raj, Private Secretary to the Minister concerned, whereby said letter has been forwarded to the District Magistrate, Bijnor for doing the needful. Consequently, the District Magistrate vide order dated 30.04.2012 had asked Sub Divisional Magistrate, Chandpur to enquire into the matter and submit report. 13. From perusal of original record produced today surprisingly the Court has also occasion to peruse the letter dated 17.2.2013 sent by the State Minister, Panchayati Raj to the Sub Divisional Magistrate, Chandpur, Bijnor, which was endorsed by the Sub Divisional Magistrate with following observation:- ^^izŒiwŒfuŒ ^^d`ŒfuŒvkŒdkŒ djs i=okgd vdcjiqj frxjh ds mŒnŒfoŒ dh nqdku ds fujLrhdj.k gsrq vuqjks/k dj jgs FksA^^ 14. So far as earlier suspension is concerned, the same was revoked by the Sub Divisional Magistrate on the basis of open meeting, which was conducted on 28.4.2012, wherein 19 Antyodaya card holders, 22 BPL card holders and 74 other persons have clearly proceeded to record their statements that there was proper distribution of essential commodities and at no point of time there was any maldistribution of the essential commodities. On spot only 26 persons belonging to 2-3 families made complaint regarding maldistribution. On the basis of enquiry the Sub Divisional Magistrate was also of the opinion that the distribution was in proper manner. However, warning was given on the said date. Thereafter, again members of the same family had been approaching not only to the authorities but also different politicians and they have succeeded as has been indicated above. From the endorsement as above this much is reflected that the politicians were also inclined that by all means the license of the petitioner be cancelled. Only in this backdrop, once higher authorities have directed in such categorical manner, the authorities had no other option except to cancel the license and within short span of three months different enquires were conducted and finally the license has been cancelled. While filing the appeal in question the petitioner has taken all these materials in categorical terms, wherein detailed names have been mentioned those are very close to Pradhan, who has concocted all these stories and had only targeted to anyhow cancel the license. While filing the appeal in question the petitioner has taken all these materials in categorical terms, wherein detailed names have been mentioned those are very close to Pradhan, who has concocted all these stories and had only targeted to anyhow cancel the license. Most surprisingly the appellate authority has also proceeded to non-suit the claim merely on the basis of his own finding, which has been recorded but at no point of time had appreciated the correct facts. At no point of time the authorities had ever perused the original record, which clearly reveals to this Court that action has been taken by the officer concerned on the dictate of the politicians. Once opinion has been formed by the licensing authority while submitting the report on 7th August, 2012 with categorical terms that there was no allegations regarding maldistribution of essential commodities, the Court is of the opinion that aforesaid events had forced the authorities to take different view within three months time with an object to pacify the superiors. At no point of time the licensing authority as well as appellate authority had exercised their independent mind while passing the orders impugned. 15. Admittedly, in the present matter, on certain complaint, the enquiry was conducted and the report was submitted. Thereafter a show cause notice was issued to the petitioner to which he had submitted his reply denying the allegations made against him. Finally, the authority concerned has cancelled the fair price shop license of the petitioner without considering the objections filed by the petitioner and at no point of time, the Authority has adhered the procedure prescribed as per the Government Order dated 29.07.2004, wherein, full fledged mechanism has been provided therein for initiation of an inquiry and finalization of the proceeding. 16. In view of the above, this Court is of the considered opinion that both the orders impugned cannot sustain in absence of proper inquiry which is sought to be conducted in pursuance of Government Order dated 29.07.2004 and accordingly, both the orders impugned are set aside. The writ petition stands allowed. The license of the petitioner be restored and smooth supply of essential commodities be ensured forthwith. The original record has been returned to learned Standing Counsel.