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2020 DIGILAW 841 (ALL)

Adarsh v. State of U. P.

2020-05-05

SIDDHARTHA VARMA

body2020
JUDGMENT : Siddhartha Varma, J. 1. This writ petition was, even though by an order of this Court dated 19.10.2019 directed to be heard with Writ-C No.31076 of 2019, it was heard separately and a separate order is being passed in this writ petition after hearing the learned counsel for the petitioner and the learned Standing Counsel. 2. The petition in this case was served with a show-cause notice dated 28.3.2018 asking as to why her licence to run the Fair Price Shop be not cancelled. The show-cause notice dated 28.3.2018 was also accompanied by an order of suspension. Against the order of suspension, the petitioner had filed a writ petition being Writ-C No.18621 of 2018 which was disposed of with a direction that the petitioner might submit her detailed reply before the District Supply Officer and the enquiry thereafter had to be conducted. The petitioner submitted her reply and thereafter the District Supply Officer on 4.12.2018 cancelled the licence of the petitioner to run the Fair Price Shop. The petitioner thereafter filed an Appeal before the Commissioner, Meerut Division, Meerut which when was dismissed on 30.4.2019, the petitioner filed the instant writ petition. 3. In the meantime, a First Information Report dated 21.3.2018 under section 3/7 of the Essential Commodities Act, 1955 which had preceded the suspension order had resulted in the submission of a Final Report by the prosecution on 19.9.2018. This Final Report was also accepted by the Additional Chief Judicial Magistrate on 21.6.2019. No protest petition was filed against the acceptance of the Final Report. 4. The contention of the learned counsel for the petitioner was that after the lodging of the First Information Report on 21.3.2018, the proceedings by the Sub-Divisional Officer, on the basis of the show-cause notice issued on 28.3.2018, were illegal inasmuch as the show-cause notice and the suspension order both were based on the very same grounds which had resulted in the lodging of the First Information Report. Learned counsel for the petitioner relying upon a judgment reported in 2011 (3) ADJ 638 : Smt. Raj Kumari vs. State of U.P. & Ors., submitted that a mere filing of the First Information Report under section 3/7 of the Essential Commodities Act, 1955 could not be made a ground for the cancellation of a dealership of a Fair Price Shop. Learned counsel for the petitioner further submitted that if the charges as were levied against the petitioner in the First Information Report were perused and the charges as were there in the show-cause notice were seen, then it would become evident that both the charges were absolutely the same and, therefore, the order passed for the cancellation of the licence to run the Fair Price Shop could not be sustained in the eyes of law. Learned counsel for the petitioner further submitted that when the order cancelling the licence of the Fair Price Shop was passed, it was preceded by an approval from the District Magistrate under the relevant Government Orders. This he submits would be evident from the order dated 4.12.2018 i.e. the cancellation order itself. Learned counsel for the petitioner further submitted that the very same District Magistrate who had granted the approval to pass the order dated 4.12.2018 had also allowed the submission of the Final Report. He submitted that the filing of Final Report was only after the permission of the District Magistrate vide order dated 4.9.2018 and thereafter the A.C.J.M. Meerut had accepted the Final Report. Learned counsel for the petitioner still further submitted that the enquiry as was undergone against the petitioner did not comply with the provisions of the various Government Orders which had contemplated for a full-fledged enquiry. Learned counsel submitted that before the final order was passed, no place or time was fixed for the conducting of the enquiry. Learned counsel submitted that the petitioner could not produce any witness of her. She could not produce any witness to rebut the evidence which were brought-forth by the Licensing Authorities. Essentially learned counsel for the petitioner submitted that malice and ill-will were writ large. On the one hand the District Magistrate was giving approval to the passing of the order of termination and on the other he was allowing the submission of the Final Report. Learned counsel for the petitioner submitted that apart from malice and ill-will, no application of mind was also there. 5. On the one hand the District Magistrate was giving approval to the passing of the order of termination and on the other he was allowing the submission of the Final Report. Learned counsel for the petitioner submitted that apart from malice and ill-will, no application of mind was also there. 5. No counter affidavit has been filed by the learned Standing Counsel as the case was heard only on a pure question of law as to whether when the Final Report was submitted on the approval of the District Magistrate then could the order of termination be upheld which also was passed after the approval of the District Magistrate. Learned Standing Counsel had made his oral submissions. 6. Learned Standing Counsel had submitted that the enquiry by the Licensing Authorities was based on the "doctrine of preponderance of probabilities" whereas the investigation by the police and the acceptance of the Final Report submitted by the prosecution were not based on the doctrine of "preponderance of probabilities". Learned Standing Counsel, therefore, submitted that the fact that the Final Report was submitted and that too on the basis of the permission granted by the District Magistrate would not affect the order of termination which was upheld by the Appellate Court. 7. Having heard learned counsel for the petitioner and the learned Standing Counsel, I find that the First Information Report had preceded the show-cause notice. I also find that virtually all the charges levied in the First Information Report were similar to the charges made in the show-cause notice. I fail to understand that when the prosecution had found that the petitioner was not guilty and this finding was affirmed by the District Magistrate, then how the order of termination could stand. I also find that there was virtually no application of mind by the District Magistrate when the approval was given before the termination order was passed. In fact malice is writ large. On the one hand approval for the termination of licence was granted by the District Magistrate and on the other he gave his consent for the submission of the Final Report. I also find that the enquiry was not conducted in the manner as was contemplated in the relevant Government Orders. No time was fixed when the petitioner could have brought her witnesses to rebut the evidence placed by the Licensing Authorities. I also find that the enquiry was not conducted in the manner as was contemplated in the relevant Government Orders. No time was fixed when the petitioner could have brought her witnesses to rebut the evidence placed by the Licensing Authorities. I also find that no place was ever fixed where an enquiry had to be conducted. 8. Since, in the decision rendered by the Supreme Court in Poonam vs. State of U.P. & Ors. reported in (2016) 2 SCC 779 , it has been held that an allottee who had been allotted a shop during the pendency of the litigation had no right to challenge the restoration of the licence, I find that there is no requirement to hear the subsequent allottee and, therefore, the writ petition is being allowed in the absence of the subsequent allottee. 9. The orders dated 28.3.2018, 4.12.2018 and 30.4.2019 by which the licence of the petitioner was suspended, the licence was cancelled and thereafter the appeal was dismissed, respectively, are being set-aside. The licence of the petitioner to run the Fair Price Shop shall now be restored. 10. The writ petition is, accordingly, allowed with the aforesaid observations.