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2023 DIGILAW 1178 (ALL)

Jitendra Singh v. State of U. P.

2023-04-27

KSHITIJ SHAILENDRA

body2023
JUDGMENT Kshitij Shailendra, J. Heard Shri Nagendra Kumar Pandey, learned counsel for the petitioner, learned Standing Counsel for the State-respondents. Shri Tariq Maqbool Khan, learned counsel has accepted notice for the respondent No.4. 2. The petitioner was running a Fair Price Shop. Hindu Yuva Vahini, Organization moved a complaint on 02.01.2006 pointing out irregularities in running the shop by the petitioner. Pursuant to the same, license of the petitioner was suspended, where after, an enquiry was conducted and the license was restored on 22.02.2006 recording satisfaction of the card-holders that they had no grievance against the petitioner in relation to distribution of essential commodities. 3. Next month again, a complaint was filed by the same Organisation, pursuant whereto, license of the petitioner was again suspended on 09.05.2006. The petitioner filed an appeal. The appellate court passed stay order dated 17.05.2006 staying operation of the suspension order, however, on the same day of passing stay order, the petitioner's license was again cancelled. 4. The petitioner filed appeal against cancellation order. The appeal was allowed by order dated 31.07.2006 with a clear finding that successive suspension and cancellation was on account of political pressure exercised by political and other organizations. The appellate authority remanded the matter to the Sub Divisional Officer with a direction to conduct spot inspection to ascertain the factual position and also to grant opportunity of hearing to the petitioner. 5. Though the appeal was allowed but the shop of petitioner was not restored, he filed Writ Petition No.42930 of 2006 which was allowed by this Court by order dated 10.08.2006 in part with a direction that the shop of the petitioner shall become operative so long as the Licensing Authority passes a fresh order after fresh enquiry and after hearing the petitioner. 6. In pursuance of the High Court's order, the shop of the petitioner was restored on 24.08.2006. Suprisingly, on the next day i.e. 25.08.2006, another show cause notice was issued granting the petitioner three days' time to file reply. The petitioner replied on 28.08.2006 and immediately after two days, the petitioner's shop was again cancelled on 30.08.2006. The petitioner filed appeal which was also dismissed on 16.01.2007. Suprisingly, on the next day i.e. 25.08.2006, another show cause notice was issued granting the petitioner three days' time to file reply. The petitioner replied on 28.08.2006 and immediately after two days, the petitioner's shop was again cancelled on 30.08.2006. The petitioner filed appeal which was also dismissed on 16.01.2007. The petitioner challenged cancellation order as well as appellate order by filing Writ C No.9756 of 2007 (Jitendra Singh v. State of U.P. and Ors.) which was again allowed by this Court by a detailed order dated 29.09.2011 whereby the cancellation and appellate orders were quashed and the Sub Divisional Officer was directed to hold fresh enquiry into the matter after providing copies of the statements recorded against the petitioner and also to give a chance to the petitioner to cross-examine the said witnesses who had deposed against him and, in case, the petitioner wants to cross-examine, he may be allowed to do so. Insofar as the attachment of shop is concerned, a clear direction was issued that present arrangement to run the shop shall continue. 7. Pursuant to the aforesaid order of this Court, the petitioner continued to run shop, however, on 24.02.2012 the petitioner's license was again cancelled, against which, he filed an appeal which was allowed by the Commissioner concerned by order dated 18.10.2012 whereby the matter was again remanded to the Sub Divisional Officer with a direction that during the course of enquiry whatsoever statements of card-holders were recorded, their copies be made available to the petitioner granting him opportunity to cross-examine the witnesses. The Commissioner, however, directed that till the disposal of the matter by the Sub Divisional Officer, attachment of the shop shall continue and, in case, new shop has been allotted, the same shall continue. 8. It appears that by cancelling the license of the petitioner on 24.02.2012, the shop was put under attachment. 9. Pursuant to the Commissioner's order dated 18.10.2012, the first order impugned dated 26.02.2013 has been passed again cancelling the license of the petitioner. The petitioner filed appeal which has also been dismissed by the Commissioner by second order impugned dated 26.10.2015. 10. Learned counsel for the petitioner submits that the entire proceedings were malicious in nature as would be apparent from the beginning till end and time and again the cardholders, during the course of enquiry, had deposed in favour of the petitioner. The petitioner filed appeal which has also been dismissed by the Commissioner by second order impugned dated 26.10.2015. 10. Learned counsel for the petitioner submits that the entire proceedings were malicious in nature as would be apparent from the beginning till end and time and again the cardholders, during the course of enquiry, had deposed in favour of the petitioner. He further submits that directions contained in the order dated 29.09.2011 passed by this Court in Writ C No.9756 of 2007 (Jitendra Singh v. State of U.P. and Ors.) and also the directions contained in the Commissioner's order dated 18.10.2012 were not complied with. Learned counsel submits that the order impugned is quite cryptic in nature and conclusion has been drawn against the petitioner by pointing certain overwriting in the distribution register and use of two pen. 11. A counter affidavit has been filed by the State annexing therewith a copy of the enquiry report of the year 2006. The said enquiry report is of no significance as pursuant to the same, the shop was already restored in August 2006 where after, even the writ petition filed by the petitioner was allowed directing running of the shop and, even otherwise, under the order dated 29.09.2011 passed in Writ C No.9756 of 2007 (Jitendra Singh v. State of U.P. and Ors.) as well as in order dated 18.10.2012, directions for fresh enquiry were issued. 12. Having heard learned counsel for the parties, I find that the petitioner has been made to suffer from 2006 on wards at the behest of a political organization that had no locus in the matter and, even if, its locus as a complainant is accepted, cancellation of license of the shop was not justified as time and again, whosoever cardholders came to get their statements recorded, they did so in favour of the petitioner stating that they had no grievance against him in relation to the distribution of essential commodities. 13. Insofar as alleged overwriting aspect is concerned, specific stand of the petitioner before the appellate court was that he is an under educated person and if at some places, signatures were missed, the same were got made and it was not a case of overwriting. 14. 13. Insofar as alleged overwriting aspect is concerned, specific stand of the petitioner before the appellate court was that he is an under educated person and if at some places, signatures were missed, the same were got made and it was not a case of overwriting. 14. I have also perused the appellate court's order which shows that only 10 BPL card-holders and 16 APL card-holders had submitted their affidavits and statements and in relation to other cardholders, the appellate court observed that their statements had not been brought on record and, therefore, the order impugned before the Commissioner was upheld by him. 15. The reasonings recorded in both the impugned orders do not impress the Court. The reason is that a direction for remand issued by this Court in its order dated 29.09.2011 and Commissioner's order dated 18.10.2012 were not complied with. Even if, some compliance was sought to be made, the decision should have been taken on the basis of material placed during the course of alleged enquiry and once the card-holders had deposed in favour of the petitioner an order adverse to the petitioner could not be passed awaiting the statements of remaining card-holders who did not appear to produce any other document against the petitioner. In fact, I find that it is a case where authorities were expecting the petitioner to lead evidence against him which is basically contrary to law, as per the spirit of Article 20 of the Constitution of India as nobody can be compelled to lead evidence against him. I do not find that there is any other material which justifies the cancellation of license of the petitioner. 16. In view of the above, I am not inclined to remand the matter for further consideration as unnecessary remand should be avoided in such matter, particularly, those which are old and where the Court is satisfied that remanding the matter would be a futile exercise. 17. I also find that, time and again, on account of positive intervention made by this Court in favour of petitioner regarding running of the shop, the petitioner was allowed to run shop on intermittent basis, however, only at the behest of a political organisation, license was cancelled and appeal was dismissed. 18. In view of the above, the writ petition succeeds and is allowed. 18. In view of the above, the writ petition succeeds and is allowed. The orders impugned dated 26.02.2013 and 26.10.2015 respectively, contained in 'Annexure Nos.16 and 18' of the writ petition are hereby quashed by issuing a writ of Certiorari. 19. A writ of Mandamus is issued commanding the respondent no.3-Sub Divisional Magistrate, Tehsil-Padrauna, District-Kushi Nagar to restore the Fair Price Shop of the petitioner within a period of one month from today and allow him to run the same.