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2024 DIGILAW 1956 (ALL)

Sita Ram v. State of U. P.

2024-08-29

CHANDRA KUMAR RAI

body2024
JUDGMENT : (Chandra Kumar Rai, J.) Heard Sri Indu Shekhar Tripathi learned counsel for the petitioner, Sri Abhay Kumar Pandey, learned counsel holding brief of Sri S.N. Yadav learned counsel for respondent No. 5 and Sri Krishna Mohan Mishra, learned Additional Chief Standing Counsel for the state. 2. Brief facts of the case are that petitioner was granted licence for fair-price-shop on 23.2.2018 for gram panchayat-Kurhi Kheriya, Block-Khairgarh, Tehsil - Shikohabad, District-Firozabad. On 23.11.2022, District Supply Officer inspected the fair-price-shop of the petitioner in the absence of the petitioner. At the time of inspection, petitioner's wife and petitioner's daughter were present. On the basis of the inspection dated 23.11.2022, District Supply Officer, Firozabad lodged a First Information Report dated 2.12.2012 against the petitioner under Section 3/7 of The Essential Commodities Act, 1955, accordingly, suspended the fair-price-shop license of the petitioner vide order dated 3.12.2022 and attached the petitioner's shop with adjacent fair-price-shop holder of Sri Kusum Pal. Petitioner submitted his reply/explanation dated 23.1.2023 before District Supply Officer, stating that all food-grains were stored in the adjacent room in the same premises which was not inspected by the District Supply Officer. District Supply Officer vide order dated 16.3.2023 cancelled the petitioner's fair-price-shop licence. Petitioner Challenged the cancellation order dated 16.3.2023 by way of appeal under Section 13 (1) of Uttar Pradesh Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016 which was allowed vide order dated 27.9.2023 and remitted the matter back before the authority for fresh decision in the light of Government Order dated 5.8.2019. In pursuance of the remand order dated 27.9.2023, fresh cancellation order dated 13.12.2023 has been passed by respondent No. 3/District Supply Officer on the basis of the report dated 30.11.2023, submitted by City Magistrate. Hence this Writ Petition for following relief: (I) Issue a writ order or direction in the nature of certiorari quashing the order dated 23.12.2023 passed by respondent No. 3 as contained Annexure No-1 to the writ petition. (II) Issue a writ order or direction in the nature of mandamus commanding and directing to the respondent No. 3 to restore the fair price shop of petitioner and ensure the distribution of the food grains supply from month to month. 3. This Court vide order dated 15.4.2024 entertained the matter and passed the following order dated 15.4.2024 : ''1. (II) Issue a writ order or direction in the nature of mandamus commanding and directing to the respondent No. 3 to restore the fair price shop of petitioner and ensure the distribution of the food grains supply from month to month. 3. This Court vide order dated 15.4.2024 entertained the matter and passed the following order dated 15.4.2024 : ''1. Petitioner has directly assailed the order dated 13.12.2023 passed by District Supply Officer cancelling his license for fair-price-shop, without availing the alternative remedy to file appeal under Rule 13(1) of Uttar Pradesh Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016. 2. Point of law involved in the instant writ petition lies in a narrow compass as to whether authority, who has enquired the matter and submitted the report can decide the merits of the case as well intending to examine the misappropriation or anomaly, if any, in distribution of essential commodities. It is submitted that as per Government Order dated 5.8.2019, same authority is not authorized to examine the embezzlement allegedly committed by the fair price shop licensee after confronting with him, who has initially enquired the matter and submitted the inquiry report. It is next submitted that learned appellate Court, vide order dated 27.9.2023, has remanded the matter with an unequivocal direction to consider the case of the petitioner by some other district level authority except the District Supply Officer, who has initially submitted the report, in compliance of provisions as enunciated under Government Order dated 5.8.2019. However, despite the direction issued by learned Additional Commissioner, vide its order dated 27.9.2023, the same District Supply Officer, in defiance of the order dated 27.9.2023 and Government Order dated 5.8.2019 has passed the order impugned dated 13.12.2023 whereas he has inherent lack of jurisdiction to examine the embezzlement, if any, allegedly committed by petitioner while distributing the essential commodities. It is very unfortunate that despite the order passed by learned Additional Commissioner, same officer (District Supply Officer) has decided the matter, who has initially conducted the enqiury and submitted inquiry report. 3. Respondent Nos. 1 to 3 are represented though learned Standing Counsel. Respondent No. 4 Gaon Sabha and respondent No. 5 private respondent are also being represented through their counsel. 4. Learned Standing Counsel has prayed for and granted two weeks' time to seek instructions in the matter and file befitting affidavit, if any. 5. 3. Respondent Nos. 1 to 3 are represented though learned Standing Counsel. Respondent No. 4 Gaon Sabha and respondent No. 5 private respondent are also being represented through their counsel. 4. Learned Standing Counsel has prayed for and granted two weeks' time to seek instructions in the matter and file befitting affidavit, if any. 5. Office is directed to print the name of Sri Satya Narayan Yadav as counsel for the respondent No. 5 in the cause list whenever case is listed next, who has filed memo of appearance on behalf of respondent No. 5 today in Registry. 6. List this matter on 1.5.2024, in top ten cases of the additional cause list.'' 4. In pursuance of the order dated 15.4.2024 parties have exchanged their pleading. 5. Learned Counsel for the petitioner submitted that fair-price-shop licence granted to petitioner in the year 2018, has been cancelled in violation of the G.O. dated 5.8.2019, as such, the impugned cancellation order dated 5.8.2019 passed by respondent No. 3/District Supply Officer cannot be sustained in the eye of law. He further submitted that remand order passed by appellate authority dated 27.9.2023 in appeal has not been taken into consideration while passing the impugned cancellation order dated 13.12.2023, as such, the impugned order dated 13.12.2023 is wholly illegal. He further submitted that inspection was conducted at petitioner's fair-price-shop in the absence of the petitioner, although petitioner's illiterate wife and daughter were present but they were not aware about the working the shop as well as storage of essential commodities in another adjacent room, as such, inspection conducted by the authorities cannot be treated as proper inspection. He further submitted that several card holders of the village filed affidavit in favour of petitioner stating that they are getting the essential commodities regularly on their cards. He submitted that reply submitted by the petitioner has not been taken into consideration in proper manner, as such, impugned cancellation order dated 13.12.2023 is liable to be set aside. He further submitted that alternative remedy of appeal against the impugned cancellation order will not be bar for the petitioner as impugned cancellation order dated 13.12.2023 has been passed in violation of Government Order dated 5.8.2019 as well as in violation of appellate order dated 27.9.2023 passed in appeal by appellate authority. He further submitted that alternative remedy of appeal against the impugned cancellation order will not be bar for the petitioner as impugned cancellation order dated 13.12.2023 has been passed in violation of Government Order dated 5.8.2019 as well as in violation of appellate order dated 27.9.2023 passed in appeal by appellate authority. He placed reliance upon the following judgments of this Court as well as Apex Court in support of his argument : (i) Bajrangi Tiwari v. The Commissioner Devi Patan Mandal, Gonda and another; 2018(6) ADJ 177 (LB); (ii) Order dated 23.7.2024, Writ C No. 5933 of 2024, Razaq v. State of U.P. and others; (iii) Order dated 22.10.2021, Writ C No. 4169 of 2018, Devi Shankar Tiwari v. State of U.P. and others. 6. On the other hand, learned standing counsel for the state-respondents, learned counsel for gaon sabha and learned counsel for the respondent No. 5/subsequent allottee submitted that impugned cancellation order dated 13.12.2023 is appealable, as such, writ petition is liable to be dismissed on the ground of alternative remedy. They further submitted that in pursuance of the appellate order dated 27.9.2023, reply of the petitioner was examined by City Magistrate who submitted his report on 30.11.2023 in respect to black marketing. They further submitted that on the basis of the report of City Magistrate dated 3.11.2023, approval of District Magistrate was granted on 7.12.2023 which is according to Government order dated 5.8.2019 as well as in compliance of the remand order dated 27.9.2023 passed in appeal. They submitted that allegation of black-marketing is fully established against the petitioner, as such, no interference in required against the impugned cancellation order dated 13.12.2023. 7. Learned counsel for respondent No. 5 specifically argued that after cancellation of licence granted in favour of petitioner, the right has been created in favour of respondent No. 5, as such, cancellation order should not be interfered with in exercise of jurisdiction under Article 226 of the Constitution of India. 8. I have considered the arguments advanced by learned counsel for the parties and perused the records. 9. 8. I have considered the arguments advanced by learned counsel for the parties and perused the records. 9. There is no dispute about the fact that petitioner was granted fair-price-shop licence which has been cancelled by District Supply Officer vide order dated 16.3.2023 but in appeal the appellate authority has set aside the order of cancellation dated 16.3.2023 and remitted the matter back for fresh decision in the light of the Government order dated 5.8.2019. There is also no dispute about the fact that under the impugned order dated 13.12.2023, respondent No. 3/District Supply Officer has again passed the cancellation order in respect to fair-price-shop of the petitioner. 10. In order to appreciate the controversy involved in the matter, the perusal of the relevant portion of the Government order dated 5.8.2019 which is applicable for ruler as well as urban area in respect to suspension/cancellation of fair-price-shop licence will be necessary which is as under: 11. The perusal of sub-clause 7 of Clause 8 of Uttar Pradesh Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016 will be also relevant which is as under : That as per Control Order, 2016 provides in sub-clause (7) of Clause ''The competent authority shall take prompt action in respect of violation of any condition of license including any irregularity committed by the fair-price-shop owner, which may include suspension or cancellation of the fair-price-shop owner's license. An inquiry regarding irregularities in distribution by a fair-price-shop owner shall be conducted by the designated officer or by the District Magistrate. After inquiry, if the license of fair-price-shop owner is suspended alongwith a show-cause notice by the competent authority, then the reply/explanation of show-cause notice by fair-price-shop owners will be examined by an officer at least one rank above the Inquiry Officer. If the preliminary enquiry had been conducted by a district level officer, then the explanation by fair-price-shop owners shall be examined by another district level officer.'' 12. The perusal of the Government order as well as the provision contained under the Clause 8(7) of the Control Order, 2016 as quoted above, demonstrates that explanation/reply submitted by the fair-price-shop owner will be examined by officer at least one rank above the Enquiry Officer. 13. The perusal of the Government order as well as the provision contained under the Clause 8(7) of the Control Order, 2016 as quoted above, demonstrates that explanation/reply submitted by the fair-price-shop owner will be examined by officer at least one rank above the Enquiry Officer. 13. In the instant matter, the inspection was conducted by District Supply Officer and the explanation was also considered by the District Supply Officer and the 1st cancellation order was passed by the District Supply Officer, as such, the appeal filed by the petitioner was allowed and a direction was issued to proceed in accordance with the Government order dated 5.8.2019. In pursuant to the appellate order dated 27.9.2023, the City Magistrate was authorized to consider the explanation/reply of the petitioner who submitted his report dated 30.11.2023. The final order for cancellation was again passed by the District Supply Officer which is not the full compliance of the Government order dated 5.8.2019 as well as the provisions contained under sub-clause 7 of Clause 8 of Control Order, 2016 as District Supply Officer has conducted the inspection in respect to petitioner's fair-price-shop and ultimately he has passed the cancellation order also which is not proper exercise of power as provided under the Government order dated 5.8.2019 as well as sub-clause 7 of Clause 8 of Control Order, 2016. 14. So far as the charges levelled against the petitioner in respect to the black-marketing of the essential commodities is concerned, petitioner has submitted his reply that the entire essential commodities were stored in the adjacent room of the same premises which was not inspected by the authorities. The explanation was also furnished by the petitioner that petitioner was not present rather his illiterate wife and daughter were present who were not aware about the entire procedure regarding the machinery and records with respect to the distribution of essential commodities but there was no proper consideration of the petitioner's explanation by the authorities. The explanation was also furnished by the petitioner that petitioner was not present rather his illiterate wife and daughter were present who were not aware about the entire procedure regarding the machinery and records with respect to the distribution of essential commodities but there was no proper consideration of the petitioner's explanation by the authorities. The case law cited by learned counsel for the petitioner in the case of Devi Shanker Tiwari (supra), it has been held by this Court that if there was reply/explanation that part of the essential commodities were stored in adjacent room of the same premises then the authorities should inspect the premises again rather to suspend or cancel the fair-price-shop licence on the ground that the entire quantity of the essential commodities were not found on spot. The relevant portion of the judgment is as follows : ''Having heard the learned counsel for the petitioner and learned Standing Counsel, the Court is of the view that when after the petitioner had submitted his reply on 7.1.2017 after the show-cause notice was served upon him on 6.1.2017, no enquiry had taken place. Had an enquiry taken place it would have been clarified as to whether the petitioner was present on 5.1.2017 at the shop or not. Further the Court is of the view that when the petitioner had made a request on 7.1.2017, 15.1.2017 and 24.6.2017 that the authorities may make a fresh inspection of the adjacent room then the fresh inspection ought to have been made. Under what circumstances a fresh inspection was not made is absolutely not clear from the record. Infact the averments in paragraph 7 of the Counter-affidavit are absolutely vague. The filing of the applications was not denied. However, it has been stated that the applications were moved to save the petitioner. Under such circumstances, when there was no inspection and also when there was no proper enquiry as per the Government Orders dated 29.7.2004 and 14.10.2004, the Court is of the view that the order impugned dated 21.7.2017 passed by the Sub-Divisional Officer, Bhadohi and the order dated 21.12.2017 passed by the Commissioner, Vindhyachal Division, Mirzapur cannot be sustained in the eyes of law and are, therefore, quashed. Accordingly, the writ petition is allowed.'' 15. Accordingly, the writ petition is allowed.'' 15. In the another judgment cited by learned counsel for the petitioner in the case of Razaq (supra), it has been held that if the inquiry has not been conducted according to the Government order dated 5.8.2019 to the effect that one rank higher to the officer than the officer who has conducted the preliminary enquiry is fulfilled the fair-price-shop licence of the licence holder, cannot be cancelled or suspended. Paragraph No. 5 of the judgment will be relevant for consideration which is as under : ''5. Accordingly, this Court is of the considered view that the inquiry is vitiated on account of the fact that the respondents have not properly followed the provisions as provided in Government Order dated 5.8.2019 inasmuch as the reply submitted by the petitioner was not examined by an officer one rank higher than the officer who had conducted preliminary inquiry and accordingly inquiry proceedings are set aside.'' 16. So far as the alternative remedy against the impugned order is concerned, the Hon'ble Apex Court in the case in Committee of Management and another v. Vice Chancellor and others, 2009(2) ESC 194 (SC), has held that alternative remedy will not be bar if the order impugned is without jurisdiction or in violation of principal of natural justice. Paragraph No. 21 will be relevant for perusal which is as under : ''21. Furthermore, when an order has been passed by an authority without jurisdiction or in violation of the principles of natural justice, the superior Courts shall not refuse to exercise their jurisdiction although there exists an alternative remedy. In this context, it is appropriate to refer to the observations made by this Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, (1998) 8 SCC 1 : ''15. .... But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. ....'' [See also Guruvayoor Devaswom Managing Committee and another v. C.K. Rajan and others, (2003) 7 SCC 546 ] In this case, albeit, before us for the first time, the vires of the proviso appended to Section 16 of the Act is in question, besides other points noticed by us hereinbefore.'' 17. In the instant matter, the impugned order for cancellation of fair-price-shop has been passed in violation of the Government order as well the provisions contained under sub-clause 7 of Clause 8 of the Control Order, 2016, as such, the alternative remedy will not be bar to entertain the writ petition under Article 226 of the Constitution of India. 18. The specific argument advanced by learned counsel for respondent No. 5 that right has been created in favour of respondent No. 5 after cancellation of fair-price-shop of the petitioner which cannot be annulled, is misconceived as the petitioner has challenged the order of cancellation initially in appeal which was allowed and the matter was remanded back before the licensing authority and under the impugned cancellation order the license of the petitioner has been cancelled which is under challenge before this Court, as such, right, if any, created in favour of respondent No. 5 shall be subject to the adjudication of the dispute in the instant matter. 19. The matter was once remanded by the appellate authority even then there is no proper compliance of the remand order in respect to the provisions contained under Clause 8(7) of the Control Order, 2016 as well as Government order dated 5.8.2019, as such, there is no option except to restore the fair-price-shop licence of the petitioner rather to remand the matter for fresh consideration/enquiry. 20. Considering the entire facts and circumstances as well as the ratio of law laid down by this Court in Devi Shanker Tiwari (supra) and Razaq (supra), the impugned cancellation order dated 13.12.2023 passed by respondent No. 3/District Supply Officer is liable to be set aside and the same is hereby set aside. 21. The writ petition stands allowed and the licence of the fair-price-shop of the petitioner is restored. The authorities are directed to restore the supply of the essential commodities to the petitioner within a period of one month from the date of production of the certified copy of the order. 22. No order as to costs.