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2022 DIGILAW 673 (ALL)

Shahid Husain v. State of U. P.

2022-04-29

SAUMITRA DAYAL SINGH

body2022
JUDGMENT : 1. Heard Sri Jai Singh Yadav, learned counsel for the petitioner and learned Standing Counsel for the State-respondents. 2. Present writ petition has been filed against the order dated 16.03.2018 passed by the Licensing Authority whereby the fair price shop agreement in favour of the petitioner has been cancelled. Further, challenge has been raised to the order dated 23.09.2019 passed by the Appeal Authority who has confirmed the order dated 16.03.2018. 3. Submissions advanced by learned counsel for the petitioner are that cancellation order has been passed, amongst others on grounds that had not even been mentioned in the charge sheet. To that extent, the cancellation order is passed on extraneous consideration. Second, it has been submitted, the entire proceedings have arisen on unverified facts. The complaint was not supported by personal affidavit of any of the complainants. Amongst others, it included names of dead persons such as Salim S/o Sirajuddin, Jagat Pal S/o Lal Sahai, Vimla Devi W/o Mahipal, Champa Devi W/o Ram Lal and Prem Kali W/o Chandra Pal. The preliminary enquiry was conduced behind the back of the petitioner. 4. In any case, upon receipt of charge sheet, the petitioner rebutted the allegations, amongst others by filing personal affidavits of most of the complainants named in the charge sheet. Thus, the complaint allegation stood falsified. Third, it has been submitted, no full and proper enquiry as contemplated by the 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 was conducted. Solely on the basis of cursory observations made by the Licensing Authority, the petitioner's fair price shop agreement was cancelled. 5. On the other hand, learned Standing Counsel would submit, widespread discrepancies were noted in the distribution of essential commodities and foodgrains by the petitioner. Many beneficiaries/card holders had been deprived of their fair right in the distribution of essential commodities and foodgrains. The specific allegation of short supply had not been squarely answered by the petitioner. Therefore, the impugned orders were passed. They do not call for interference. 6. Having heard learned counsel for the parties and having perused the record, in the first place, there can be no doubt as to procedure to be adopted in these proceedings. The specific allegation of short supply had not been squarely answered by the petitioner. Therefore, the impugned orders were passed. They do not call for interference. 6. Having heard learned counsel for the parties and having perused the record, in the first place, there can be no doubt as to procedure to be adopted in these proceedings. Though in the conduct of the preliminary enquiry, certain material may come to the hands of the Licensing Authority, in an ex parte manner, at the same time, before the fair price shop agreement is cancelled, a full-fledged enquiry is to be conducted wherein the fair price shop agent may be furnished all adverse material and a fair opportunity is granted to him to rebut the charge. In that process, only such charges may be examined or tested as may have been framed against the fair price shop agent and with which he may have been confronted. 7. In the present case, besides the objection raised by the petitioner as to the incompetence of the complaint made, it does appear, numerous affidavits had been filed by the petitioner of persons who may have made an oral statement against the petitioner in the course of preliminary enquiry on 26.09.2017. Copies of such affidavits have also been annexed to the writ petition. Reference thereto has been made in the written reply submitted to the charge sheet dated 09.10.2017. 8. After the issuance of the charge sheet, the stage had reached to conduct a full-fledged enquiry, since the petitioner had effectively disputed the correctness of the ex parte oral statements claimed to have been recorded by certain complainants. That dispute had been raised by the petitioner on the strength of affidavits of the said complainants. In that fact, by way of a full-fledged enquiry, it was incumbent on the Licensing Authority to have summoned the complainants and examined them in the presence of the petitioner. At least, the complainants ought to have been confronted with the personal affidavits as had been produced and relied by the petitioner. 9. In absence of the above proceedings being conducted, it is difficult to accept the view taken by the Licensing Authority - to rely on the oral statements noted behind the back of the petitioner, without giving any reason to disbelieve the affidavits of the same persons, produced by the petitioner. 9. In absence of the above proceedings being conducted, it is difficult to accept the view taken by the Licensing Authority - to rely on the oral statements noted behind the back of the petitioner, without giving any reason to disbelieve the affidavits of the same persons, produced by the petitioner. Unless the affidavits were found to be forged or fictitious, the same may not have been ignored without any full-fledged enquiry being conducted. 10. As to the charges of short supply noted from stock position, it is seen, those charges were never levelled against the petitioner in the charge sheet dated 09.10.2017. In that regard, reference has been made by the learned Standing Counsel to a second charge sheet having been served on the petitioner being letter no. 741 dated 09.10.2017 as has been referred to in paragraph no.4 of the counter affidavit filed by the respondents. Perusal of the letter no. 741 dated 09.10.2017 reveals it is not the second but the only charge sheet issued to the petitioner. It contains no such charge. That document refers to charges arising from the complaint made by certain beneficiaries supported by oral statements. The charge that was never framed against the petitioner and with which the petitioner had never been confronted could not form the subject matter of cancellation of the petitioner's fair price shop agreement. There can be no two opinion on this. 11. Therefore, all that survives for consideration is that the relief is to be granted. On one hand, no full-fledged enquiry has been conducted and therefore this Court in exercise of judicial review may remit the matter to the Licensing Authority to pass a fresh order after conducting a full-fledged enquiry. At the same time, that course may not be advisable in view of the fact, almost five years have passed and the fresh enquiry may not be efficacious to conduct, now. At the same time, the petitioner has suffered a punishment of cancellation of his agreement for almost five years. 12. In view of uncertain facts and irregular procedure adopted by the respondent State authorities, no useful purpose may be served in remitting the matter to allow the respondent a fresh opportunity to conduct de novo proceedings. 13. Present writ petition stands allowed. Let the fair price shop agreement of the petitioner be restored. No order as to costs.