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2019 DIGILAW 829 (ALL)

Kishori Lal v. State of U. P.

2019-04-02

M.C.TRIPATHI

body2019
ORDER : M.C. TRIPATHI, J. 1. Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondent. 2. Petitioner is before this Court assailing the impugned cancellation order dated' 19.2:2015 passed by the third respondent as well as appellate order dated 19.8.2017 passed, by the second respondent. 3. The record in question reflects that the petitioner was fair price shop dealer of village Datauli, Block Jaithra, Tehsil Aliganj, District Etah since 1989 and no complaint has ever been made against him by any of the cardholders or by any of the administrative authorities. Earlier the license of the petitioner had been suspended by the second respondent on 15.10.2012 against which the petitioner went into appeal and the appellate authority vide order dated 19.8.2014 allowed appeal of the petitioner and set aside the suspension order dated 15.10.2012. Pursuant to the appellate order, the third respondent restored the agreement/license of the petitioner vide order dated 5.9.2014. Thereafter, the petitioner made an application before the second respondent dated 16.10.2014 disclosing therein name of the persons who did not agree to receive essential commodities from the petitioner with the intention of making false complaint against the petitioner and again made an application before the District Magistrate Etah on 10.11.2014 regarding the false complaints made against the petitioner by the same persons whose name had been disclosed in his application dated 16.10.2014. Noteworthy that three out of nine of the named persons in aforementioned application made a false complaint against the petitioner on 10.11.2014 on which the fourth respondent submitted a false and fabricated report dated 11.11.2014 against the petitioner without making spot inspection. It appears under undue influence of the Gram Pradhan as well as local political leaders, the license of the petitioner was again suspended vide order dated 21.11.2014. After receiving the suspension order, the petitioner had submitted his detailed reply on 12.12.2014 denying all charges levelled against him. Petitioner had also challenged the said suspension order before the Division Bench of this Court by preferring Civil Misc. Writ Petition No. 853 of 2015. The said writ petition was disposed of by this Court vide order dated 16.1.2015 with a direction to the Sub-Divisional Magistrate concerned/second respondent to pass a final order in the matter in accordance with law after considering the petitioner's reply dated 12.12.2014 within six weeks. Writ Petition No. 853 of 2015. The said writ petition was disposed of by this Court vide order dated 16.1.2015 with a direction to the Sub-Divisional Magistrate concerned/second respondent to pass a final order in the matter in accordance with law after considering the petitioner's reply dated 12.12.2014 within six weeks. Thereafter, the third respondent without appreciating the reply dated 12.12.2014, in a cursory manner cancelled the license of the petitioner vide order impugned dated 19.2.2015. Being aggrieved, the petitioner filed an appeal No. 6 of 2015 (Kishori Lai v. State of U.P. & others), under Section 28(3) of U.P. Scheduled Commodities Distribution Order, 2004 before the second respondent, which too has been dismissed vide order impugned dated 19.8.2017. Hence, this writ petition. 4. Learned counsel for the petitioner in support of his submissions precisely submits that there is a specific provision provided in the Government Order dated 29.7.2004 and without contemplating the preliminary or final inquiry as mandatory under paras 4 and 5 of the aforesaid Government Order, the third respondent cancelled the petitioner's fair price shop and the second respondent also ignored the aforesaid mandatory provisions and dismissed the petitioner's appeal by the order impugned-as such 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 principles 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) : ( AIR 2011 All 73 ) 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. Paras 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. Relevant para 35 of the said judgment is quoted as under:- "35. Paras 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. 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, along with 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 v. 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 her submissions, she 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 : (2009 (3) All LJ (NOC) 457) as well as judgment in Mahendra Singh v. State of U.P. & Anr., 2016 (8) ADJ 732 : (2016 (6) ALJ 191). 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. 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 : ( AIR 1978 SC 851 ); Maneka Gandhi v. Union of India (1978) 1 SCC 248 : ( AIR 1978 SC 597 ) and D.K. Yadav v. J.M.A. Industries Ltd., Reported in (1993) 3 SCC 259 : 1993 AIR SCW 1995); Canara Bank v. V.K. Awasthy (2005) 6 SCC 321 ); Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Broad and others (2007) 6 SCC 668 ) : ( AIR 2007 SC 2276 ); Devdutt v. Union of India and others (2008 (3) ESC 433 (SC) : ( AIR 2008 SC 2513 ) and Suresh Singh v. Board of Revenue and 3 Ors. 2014 (5) ADJ 697 )." 7. Per contra, learned Standing Counsel submits that both the courts below have recorded concurrent findings of fact after considering the entire records, reply and other materials available on record as such no interference is required in the orders impugned and the writ petition is liable to be dismissed with heavy cost. 8. Heard rival submissions and perused the record. The above said factual aspect has not been disputed by learned Standing Counsel. Most surprisingly only three persons, namely, Dinesh S/o. Ajay Pal, Rajaram S/o. Sarnam, Raj Bahadur S/o. Sorripal made certain complaint against the petitioner regarding mal-practices in distribution of the essential commodities. The cognizance has been taken and while verifying the record in question, it had been found that the meager amount of 1.25 quintal rice and 14 kg. Sugar were found less in quantity and some other charges to the extent that the rate and other details are not mentioned on the board. On this score, the license of the petitioner has been cancelled. In these circumstances, the Court is of the considered opinion such punitive action was not required in the matter merely on the complaint which was also mala fide just to settle their score. On this score, the license of the petitioner has been cancelled. In these circumstances, the Court is of the considered opinion such punitive action was not required in the matter merely on the complaint which was also mala fide just to settle their score. Learned counsel for the petitioner in support of his submissions has placed reliance on Clause 2 (i) of the Government Order dated 29.7.2004, which for ready reference is reproduced as under:-- **mfpr nj dh nqdku dk fuyEcu ek= fdlh O;fDr dh f'kdk;r ds vk/kkj ij ugha fd;k tk;A ;fn fdlh nqdkunkj ds fo:) fdlh lzksr ls f'kdk;r izkIr gksrh gS rks igys mldh izkjfEHkd tkap djk;h tk;A ;fn izkjfEHkd tkap esa nqdkunkj ds fo:) ,slh xEHkhj vfu;ferrka, izFke n`"V;k fl) gks jgh gSa ftuds vk/kkj ij nqdkunkj dh nqdku fujLr gksus dh lEHkkouk gks rHkh nqdku dks fuyfEcr fd;k tk; vkSj lkFk gh lkFk nqdkunkj dks dkj.k crkvks uksfVl tkjh fd;k tk; fd mldh nqdku D;ksa u fujLr dj nh tk;A ;fn izkjfEHkd tkap esa ik;k tk; fd vfu;ferrk bruh xEHkhj ugha gS fd nqdku ds fujLrhdj.k dh lEHkkouk gks rks dsoy dkj.k crkvks uksfVl tkjh fd;k tk;A fuyEcu vkns'k@dkj.k crkvks uksfVl ,d ^Lihfdax vkMZj^ gksuk pkfg, rFkk mlesa izkjfEHkd tkap esa ik;h x;h mu lHkh vfu;ferrkvksa dk fooj.k gksuk pkfg, ftudk mRrj nqdkunkj ls visf{kr gSA** 9. It is contended that the petitioner kept on lifting the quota of essential commodities 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 GO dated 29.7.2004. It is also contended that distribution of essential commodities 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. 10. Admittedly, in the present matter, on certain complaint, the enquiry was conducted and the report was submitted. At no point of time he has violated any terms and conditions of the license nor committed any irregularity in distribution of essential commodities. 10. Admittedly, in the present matter, on certain complaint, the enquiry was conducted and the report was submitted. Finally, the authority concerned has cancelled the fair price shop licence of the petitioner without considering the reply 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. 11. 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 and the authority concerned is directed to ensure that the petitioner may be permitted to lift the quota from the next month. However, it is open for the Authority concerned to hold a fresh enquiry in accordance with law and pass appropriate order but certainly after according ample opportunity of hearing to the petitioner also.