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2019 DIGILAW 544 (ALL)

Sallauddin v. State Of U. P.

2019-02-28

MAHESH CHANDRA TRIPATHI

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JUDGMENT : Mahesh Chandra Tripathi, J. Heard Shri Vishal Tandon, learned counsel for the petitioner and Shri Devesh Vikram, learned Standing Counsel. 2. The petitioner is before this Court assailing the order dated 29.09.2018 passed by third respondent by which his fair price shop license has been cancelled and also the order dated 11.12.2018 passed by second respondent dismissing the appeal in question. 3. This much is reflected from the record in question that the petitioner was the fair price shop dealer of Gram Panchayat Sumahi Sant Patti, Block Sewrahi for last many years. The card holders of Gram Sabha Jagdishpur of the same block were also attached with the shop of the petitioner for the time being. Eventually the shop of Gram Sabha Jagdishpur was allotted to one Smt. Kanti Devi vide order dated 24.3.2018. During the attachment period of five months there was no complaint against the petitioner. On 31.5.2018, 13 bags of wheat each 50 kg were caught by the third respondent while the same was being carried on a vehicle in the village Jagdishpur and the same were seized. It was alleged that the said commodity was for distribution in Gram Panchayat Jagdishpur and the same has been given by the petitioner to Rajendra Dubey for black marketing. Though at the time of checking and seizure the driver of the said vehicle having registration no. UP 57T 8765 namely Shambhu Prasad has stated that the said commodity was got loaded by Rajendra Dubey and the same was being carried to the market for black-marketing by Rajendra Dubey. It is contended that on the same day the statement of landlord of the room, where the recovered commodity is said to have been stored/ kept was also recorded, who specifically stated that the room has been given to one Mangroo and Rajendra Dubey and he has not at all disclosed the complicity of the petitioner. In this regard an FIR under Section 3/7 Essential Commodities Act was registered and the shop of the petitioner has been placed under suspension. Consequently the petitioner filed detailed reply but ultimately the license in question has been cancelled by the order impugned by the licensing authority and appeal against the same was also rejected. 4. In this regard an FIR under Section 3/7 Essential Commodities Act was registered and the shop of the petitioner has been placed under suspension. Consequently the petitioner filed detailed reply but ultimately the license in question has been cancelled by the order impugned by the licensing authority and appeal against the same was also rejected. 4. 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." 5. 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." 5. 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 . 6. 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 ,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 )." 7. 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 )." 7. Learned counsel for the petitioner has vehemently contended that so far as suspension order is concerned, admittedly the said order was passed due to lodging of FIR under Section 3/7 Essential Commodities Act but at the time of issuing notice as well as the enquiry in the matter nothing has been brought on record to indicate that the confiscated item belonged to the petitioner. Even the stock and other relevant records had also not been verified to the extent whether there was any deficiency in the foodgrains item at his shop. As such the entire action so taken by the respondents is in teeth of the Government Order dated 29.07.2004 and judgment in Puran Singh (Supra). 8. 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. 9. So far as factual and legal aspect is concerned, the same has not been disputed by learned Standing Counsel. 10. Heard rival submission and perused the record. 11. This much is reflected from the record in question that due to confiscation of 13 bags of wheat each 50 kg an FIR under Section 3/7 of Essential Commodities Act was lodged alleging black marketing. Admittedly, the reason for suspending the license of the petitioner was lodging of the said FIR. 10. Heard rival submission and perused the record. 11. This much is reflected from the record in question that due to confiscation of 13 bags of wheat each 50 kg an FIR under Section 3/7 of Essential Commodities Act was lodged alleging black marketing. Admittedly, the reason for suspending the license of the petitioner was lodging of the said FIR. The Court finds that at the time of enquiry it was paramount responsibility of the authority concerned to verify the stock of the foodgrains of the petitioner's shop and in case there was any deficiency, then the same could be corroborated with the version of Shambhu Prasad, the driver of the vehicle in question on which aforesaid bags of essential commodities were loaded. The record clearly reveals to this Court that no such probe was ever done and in most arbitrary manner the orders impugned have been passed. 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. 12. 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 forthwith. However, it is made clear that this order would not come in the way of the criminal proceeding in question under Section 3/7 of Essential Commodities Act and the same would go on independently on its own merit without being influenced with any of the observations made by this Court.