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2020 DIGILAW 1281 (ALL)

Arvind v. State of U. P.

2020-11-03

SANGEETA CHANDRA

body2020
JUDGMENT : Sangeeta Chandra, J. 1. This petition has been filed praying for quashing of the order dated 3.8.2019 by which fair price shop licence has been cancelled, and order dated 1.9.2019 passed by the Commissioner in appeal. 2. Learned Standing Counsel says that sometime may be granted to him to file counter-affidavit. However learned Counsel for the petitioner insists that his case is covered by Division Bench decision of this Court in M/s. Mahatma Gandhi Upbhokta Sahkari Samiti v. State of U.P. and others 2001 (43) ALR 773. He has also placed reliance upon Division Bench judgment of this Court rendered in Raj Kumari v. State of U.P. and others 2011 (3) ADJ 368. 3. This Court has carefully perused the orders passed by two Division Benches. In the case of Mahatma Gandhi Upbhokta Sahkari Samiti (supra), the Division Bench of this Court had observed that Licencing. Authority had relied upon the report submitted by the subordinate officials while conducting on the spot inspection of the fair price shop of the writ petitioner therein. No copy of the enquiry report was given to the licencee and no opportunity of hearing was given. This Court observed that in view of violation of principles of natural justice, the alternative remedy of filing a statutory appeal shall not come in the way of the Court in interfering in such an order and had set aside the order of cancellation dated 4.12.2000 and directed fresh consideration. 4. In the case of Raj Kumari (supra), a Division Bench of this Court had considered a case where fair price shop licence of the appellant therein was cancelled on mere lodging of FIR under section 3/7 of the Essential Commodities Act and this Court observed that a Division Bench in its order dated 30.10.2009 in Jagdish Narain Mishra v. State of U.P. had already observed that there is no provision under the Essential Commodities Distribution Order 2004 or any other Government Order empowering the Licencing Authority to cancel fair price shop licence merely on account of a dealer being involved in a criminal case. It was observed that mere filing of a F.I.R. cannot result in holding a fair price shop owner guilty of the offences charged. If there be a conviction, then it is possible to proceed, based on the conviction and not otherwise. It was observed that mere filing of a F.I.R. cannot result in holding a fair price shop owner guilty of the offences charged. If there be a conviction, then it is possible to proceed, based on the conviction and not otherwise. In case if the F.I.R. is lodged, it is still open to the respondents to proceed by leading independent evidence and statements of the persons recorded and then pass appropriate reasoned and speaking order. 5. In the case of the petitioner, inspection was conducted by the official concerned on 20.5.2018 of the fair price shop of the petitioner. At the time of conducting of on the spot inspection it was found that the petitioner had lifted 1400 litres of kerosene oil from M/s. R.K.B.K. Ltd., whole sale dealer at Banthara on 19.5.2018 and had started distribution w.e.f. morning of 20.5.2018 itself. At the time of inspection, 680 litres kerosene oil was found in the stock of the petitioner. With regard to distribution of 720 litres since morning 8:00 a.m. till 2:15 p.m. at the time when inspection was done, the petitioner explained that he had already distributed the same. The stock register and the distribution register were verified and it was found that in the distribution register, 86 persons were shown to have been distributed kerosene oil but name/thumb impression of only 56 persons were obtained on the distribution register. The details of such person including their card number and mobile number and exact address were not mentioned in the distribution register as a result, the inspecting official i.e. Supply Inspector relied upon the addresses given by the licencee and contacted each of these 56 persons whose names/thumb impressions were found on the distribution register. From the statements of such persons and examination of their ration cards, only 176 litres of kerosene oil being distributed could be found. The rest of 544 litres kerosene oil was not present in the petitioner's stock and it was presumed that he may have black-marketed the same. The report was submitted in this regard to the District Magistrate for initiation of action under section 3/7 of the Essential Commodities Act, also an FIR was lodged thereafter on 21.5.2018. 6. Taking into account the report of the on the spot inspection, initially the fair price shop of the petitioner was suspended on 5.6.2018 and time was given to petitioner to submit explanation. 6. Taking into account the report of the on the spot inspection, initially the fair price shop of the petitioner was suspended on 5.6.2018 and time was given to petitioner to submit explanation. The petitioner submitted explanation on 21.6.2018 and according to him all 720 litres had in fact distributed from 8:00 a.m. morning till 2:15 p.m. and Supply Inspector had only taken statements of 82 card holders of three hamlets and not of four other hamlets whose quota was attached to that of the petitioner's shop. In view of the explanation submitted by petitioner, a fresh enquiry was held on 29.9.2018 but it has been argued that the petitioner was not given opportunity of being heard and statements of 297 card holders were taken out of which 56 card holders complained that they had not been given food grains and kerosene oil. The cancellation order was passed on 3.8.2019.. 7. Being aggrieved by the said order, the petitioner filed an appeal under Para 13 of the U.P. Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016 which was admitted and records of the Court below were summoned but no orders were passed in the appeal and therefore, the petitioner approached this Court by filing Writ Petition No. 4154 (MS) of 2020 which was disposed of on 13.2.2020 directing Appellate Authority to decide the appeal within a period of two months of receiving a copy of the order of the Court. Because of COVID-19 situation normal functioning of Appellate Court was started only w.e.f. 20.6.2020. It has been argued that the petitioner filed his written argument and the Joint Commissioner by an order dated 1.9.2020 without considering the written argument of petitioner passed the order rejecting his appeal. 8. It is the case of the petitioner that his son was admitted in hospital and he was looking after his son and his brother was distributing essential commodities on 20.5.2018 and he did not fill up the distribution register properly and if opportunity would have been given to the petitioner he would have certainly explained, the distribution of 544 litres kerosene oil found short. 9. This Court has perused the order of cancellation of fair price shop passed by the Licencing Authority and also the explanation given by the petitioner. At least 214 card holders had been regularly receiving essential commodities from the shop of the petitioner. 9. This Court has perused the order of cancellation of fair price shop passed by the Licencing Authority and also the explanation given by the petitioner. At least 214 card holders had been regularly receiving essential commodities from the shop of the petitioner. This Court has also considered the argument raised by the petitioner in his appeal, a copy of which has been filed as Annexure to the petition, and the written argument filed as Annexure-6 to the petition. The petitioner in his appeal had taken a ground that cancellation proceedings were taken against the procedure prescribed under the Government Order No. 4/2019/1206/29-6-2019-300 Samanya/03TC dated 5.8.2019. 10. This Court has carefully perused the aforesaid Government Order and it provides that in case proceedings are initiated against the fair price shop licencee on the basis of complaint alone, such complaint should be duly verified by asking the complainant to file affidavit in support of such complaints. This. Court finds that in the case of petitioner this provision is inapplicable, as sudden spot/inspection was done on 20.5.2018 during the time distribution of the essential commodities was being carried out by petitioner's brother. 11. The other ground taken is that his fair price shop licence has been suspended only because of proceedings under section 3/7 of the Essential Commodities Act being initiated against him. This Court finds from perusal of suspension order and also the cancellation order that the proceedings have been taken by the Licencing Authority not on the basis of FIR being lodged under section 3/7 of the Essential Commodities Act but on the basis of the report of the spot inspection done on 20.5.2018, where distribution register of the petitioner failed to account for distribution of 544 litres kerosene oil. 12. Learned Counsel for the petitioner has also taken a ground that the petitioner has not been given opportunity of hearing while cancelling his fair price shop licence. 13. This Court has carefully perused the cancellation order. The petitioner was given time to file his explanation after the suspension order was passed and when his explanation was filed before the Licencing Authority it was considered and statements of at least 297 card holders of the village concerned were recorded. 13. This Court has carefully perused the cancellation order. The petitioner was given time to file his explanation after the suspension order was passed and when his explanation was filed before the Licencing Authority it was considered and statements of at least 297 card holders of the village concerned were recorded. No doubt 214 of such card holders said that they had been receiving essential commodities regularly at the prescribed rate from the petitioner but 56 of such card holders had stated clearly that they had not received food grains and kerosene oil as was admissible to them and their cards were also examined by the Licencing Authority and irregularity in distribution was found to be proved. Thereafter the order of cancellation was passed on 3.8.2019. 14. In appeal the petitioner again slated that only 56 card holders had complained against him whereas 214 had given their affidavits in support of the petitioner. The appellate authority considered this argument, but has also observed that the petitioner did not file any documentary evidence with regard to these 56 card holders who were complaining of irregular distribution, having received their quota of food grains and kerosene oil regularly from the shop of the petitioner. He therefore, rejected the appeal. 15. This Court does not find any good ground to show interference in the order dated 1.9.2020. The judgments cited by the Counsel for the petitioner in the cases of M/s. Mahatma Gandhi Upbhokta Sahkari Samiti (supra) and Raj Kumari (supra) are inapplicable in the facts of the petitioner's case that have been considered in detail hereinabove. 16. The writ petition is dismissed. No order as to costs.