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2022 DIGILAW 316 (ALL)

Premlata Devi v. State Of U. P.

2022-03-05

SAUMITRA DAYAL SINGH

body2022
JUDGMENT : 1. List revised. None appears for respondent no.3 whereas Shri Vishal Tandon, learned counsel for the petitioner and learned Standing Counsel for the State-respondents are present. 2. None appears to press the C.M. Impleadment Application No.2 of 2018. It is accordingly dismissed for want of prosecution. 3. C.M. Amendment Application No. 14 of 2021 has already been allowed today, by a separate order. 4. Challenge has been raised to the order dated 22.5.2018 passed by espondent no.2/Sub Divisional Officer, Kaptanganj, District -Kushinagar. Thereby, the Licensing Authority has again passed an order cancelling the petitioner's fair price shop license for Gram Sabha Sindhawat, Block Ramkola, Tehsil Kaptanganj, District Kushinagar. 5. Having heard learned counsel for the parties and having perused the record, it transpires, the petitioner's fair price shop license was earlier cancelled by order dated 2.6.2017. That order was challenged unsuccessfully in appeal. The matter reached this Court in Writ -C No. 61636 of 2017 (Smt. Premlata Devi vs. State of U.P. & 3 Ors.). That writ petition was allowed with the following observation: "7. In fact, no observations have been made with regard to the issuance of Distribution Certificates at all in the impugned order. The argument made by the learned counsel for the petitioner has some substance as from a perusal of the impugned order of cancellation this Court finds that a detailed mention has been made to the circumstances leading to the passing of suspension order dated 12th of April, 2017 and thereafter, no mention has been made of the explanation submitted by the petitioner later on or to the Distribution Certificates issued by the Area Lekhpal for the month of March, April, May and June, 2016. 8. The orders impugned are set aside. The matter is remanded to the Licensing Authority to consider afresh in the light of the observations made herein above and pass a reasoned and speaking order taking into account all facts as mentioned by the writ petitioner in her explanation submitted after the suspension was passed. This exercise shall be completed by the Licensing Authority within a period of six weeks from the date a certified copy of this order is produced before him. 9. This exercise shall be completed by the Licensing Authority within a period of six weeks from the date a certified copy of this order is produced before him. 9. Till a final order is passed by the Licensing Authority the current procedure being followed for distribution of the scheduled commodities shall continue to be following for the village concerned and it shall abide by the final order to be passed by the Licensing Authority in the case of petitioner. 10. The writ petition is allowed to this extent." 6. Thus, clear direction was issued in the proceedings thus remanded to the Licensing Authority, to pass a reasoned and speaking order taking into account the explanation submitted by the petitioner later to the issuance of the suspension order dated 12.4.2017 and after considering the distribution certificates issued by the Observer/Area Lekhpal for the months of March, April, May and June 2016. No other direction was issued as may have enabled the Licensing Authority to conduct a further enquiry and no opportunity had been given to the parties to lead any additional evidence. However, while giving effect to the remand order passed by this Court, the Licensing Authority constituted a fresh inspection team on 4.4.2018, almost one year after the suspension order dated 12.4.2017. At the same time, that Committee thus constituted by the Licensing Authority made an ex-parte enquiry without involving the petitioner to any extent. It claimed to have recorded adverse statements of 23 beneficiaries named in the impugned order. Upon issuance of notice, three days thereafter, on 7.4.2018, the petitioner submitted a detailed reply rebutting the ex-parte evidence, on 24.4.2018. She objected to the course adopted by the Licensing Authority and relied on further affidavits of the 23 beneficiaries (referred to the notice dated 4.4.2018), to contend that distribution of food-grains etc had been made in accordance with law and that statements referred to in the enquiry report were false. The petitioner again relied on the report of the Observer/Area Lekhpal, in support of his explanation. Without affording any opportunity of personal hearing, the impugned order has been passed reiterating the conclusions drawn in the original cancellation order dated 2.6.2017. Hence this petition. 7. The course adopted by the Licensing Authority is found to be contrary to law. In the first place, the Writ Court had made an order of limited remand. Without affording any opportunity of personal hearing, the impugned order has been passed reiterating the conclusions drawn in the original cancellation order dated 2.6.2017. Hence this petition. 7. The course adopted by the Licensing Authority is found to be contrary to law. In the first place, the Writ Court had made an order of limited remand. It did not leave open to the Licensing Authority to conduct any fresh enquiry in the matter. In fact, the Writ Court required the Licensing Authority to pass a fresh order after taking into account the explanation furnished after issuance of the suspension order dated 12.4.2017 and keeping in mind the report of the Observer/Area Lekhpal. Therefore, the entire exercise carried out by the Licensing Authority contained in the enquiry report of the Joint Committee dated 4.4.2018 is one not authorized by this Court. 8. It should not have been done. Even if that report were to be considered to any extent, it may not be treated as adverse to the petitioner as indisputably, that report was prepared ex-parte. No statement of any beneficiary was recorded in the presence of the petitioner and no opportunity was given to the petitioner to cross-examine any of the 23 beneficiaries whose statements have been referred to in that report. 9. It is settled principle of law in this branch of law -before an order of the cancellation of the license may be passed, full and proper enquiry may be made as provided by a Full Bench decision of this Court in Puran Singh Vs. State of U.P. & Ors., 2010 (3) ADJ 659 and as applied in Smt. Santara Devi Vs. State of U.P. & Ors., 2016 (2) ADJ 70 . In absence of opportunity being given to the petitioner while conducting the enquiry on 4.4.2018, no reliance may be placed at any inference sought to be drawn by that Joint Committee. 10. Then, no opportunity of personal hearing was granted to the petitioner after she submitted her reply on 24.4.2018. Again, Rules of natural justice were infringed. The order of cancellation of the license carries with it serious civil consequences. Hence, opportunity of hearing was necessary to be given. 11. 10. Then, no opportunity of personal hearing was granted to the petitioner after she submitted her reply on 24.4.2018. Again, Rules of natural justice were infringed. The order of cancellation of the license carries with it serious civil consequences. Hence, opportunity of hearing was necessary to be given. 11. Even then, it is clear, there is no material whatsoever less so in the shape of credible evidence to doubt the report of the Observer/Area Lekhpal wherein he clearly stated, he had found the distribution of the food-grains to have been made in accordance with law. That strong evidence of government functionary could not have been discarded lightly by referring to the preliminary enquiry report of the Naib Tehsildar, which enquiry was conducted before issuance of the suspension order dated 12.4.2017. To allow the Licensing Authority to discard evidence received during enquiry on the basis of pre-enquiry material is wholly impermissible. A government functionary acting in his capacity as the Observer having reiterated that fair distribution had been made by the petitioner, the same should have been given due weightage. Such a report could be doubted or disbelieved only on the strength of credible material or evidence. That evidence has not been shown to exist in the present case. 12. Then, even if the evidence collected by the Joint Committee is considered to any extent, it cannot be overlooked that the same was contradicted by the petitioner by producing evidence of the same set of beneficiaries of their close family members. 13. The Licensing Authority has failed to bring on record any material or reason as may allow the Court to entertain the doubt as to the genuineness or correctness of the explanation furnished by the petitioner. 14. The matter has suffered one remand already. To remand the matter back may only give rise to fruitless litigation. Once the Writ Court set aside the order of Licensing Authority and required the Licensing Authority to pass an order with specific directions, the authorities had no opportunity to deal with the matter independently, except as directed by the Court. The administrative authorities if allowed to act otherwise may only lead to dilution of the rule of law and good administration to the peril of the citizenry for whose benefit the entire justice delivery system exists. 15. The administrative authorities if allowed to act otherwise may only lead to dilution of the rule of law and good administration to the peril of the citizenry for whose benefit the entire justice delivery system exists. 15. In view of the above, the impugned order dated 22.05.2018 is quashed and the present petition is allowed. Let the license of the fair price shop of the petitioner be restored forthwith.