Allahabad High Court
Brijsewak Gupta vs State Of U.P. & 3 Others on 8 March, 2017
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 28 Case :- WRIT - C No. - 10672 of 2017 Petitioner :- Brijsewak Gupta Respondent :- State Of U.P. & 3 Others Counsel for Petitioner :- Gaurav Sisodia Counsel for Respondent :- C.S.C. Hon'ble Surya Prakash Kesarwani,J.
Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents and with their consent this writ petition is being finally heard without calling for a counter affidavit.
Briefly stated facts of the present case are that by ex-parte order dated 31.07.2014 the fair price shop of the petitioner of Mohalla Bahadurganj, Tehsil Tilhar, District Shahjahanpur was cancelled merely on the ground that first information report under Section 3/7 of Essential Commodities Act, 1955 has been lodged against the petitioner. Against the aforesaid order, the petitioner filed Appeal No. 12 of 2014 which was disposed of by the Deputy Commissioner (Food), Bareilly Division, Bareilly vide order dated 28.08.2015. The aforesaid appellate authority had set aside the order of cancellation dated 31.07.2014 and directed the respondent no. 4 to obtain explanation of the petitioner and take appropriate decision. The appellate order further provides that till the decision is taken the agreement of the petitioner shall remain suspended. The petitioner submitted his explanation before the respondent no. 4 and requested him to pass appropriate order as directed by appellate authority. However, respondent no. 4 passed the order dated 14.12.2016 on the basis of opinion of the D.G.C. (Civil) that since the FIR was lodged by the administration and though final report has been submitted by the police, yet till disposal of the final report the fair price shop agreement of the petitioner may not be restored. On the basis of the opinion of the D.G.C. (Civil) the respondent no. 4 passed the aforesaid order dated 14.12.2016 observing that a decision shall be taken in the matter of the fair price shop of the petitioner only after the final report is accepted by the competent court.
Aggrieved with the aforesaid orders dated 14.12.2016 and 28.08.2015 the petitioner has filed the present writ petition.
Learned counsel for the petitioner submits that fair price shop agreement cannot be cancelled merely on the ground that an FIR under Section 3/7 of E.C.Act has been lodged against the petitioner. He further submits that even a final report has been submitted by the police in the criminal case under Section 3/7 of the E.C. Act. He further submits that there is no material on record which may justify cancellation of the fair price shop agreement of the petitioner.
Learned Standing Counsel supports the impugned orders.
I have carefully considered the submissions of learned counsels for the parties and perused the record.
In the case of Jagdish Narayan Mishra Vs. State of U.P. (CMWP No. 28051 of 2008 decided on 30.10.2009) this Court held that cancellation of fair price shop agreement on the ground of involvement of the fair price shop agent in a criminal case under the Essential Commodities Act is unsustainable. In Writ-C No. 1766 of 2011 decided on 03.03.2011 (Smt. Raj Kumari Singh Vs. State of U.P. and others) a Division Bench approved the judgment in the case of Jagdish Narayan Mishra (supra) and held the cancellation of license in such circumstances to be without authority of law. The Division Bench further held as under:
"Considering what we have set out earlier and the Judgment of this Court in Jagdish Narayan Mishra (supra), which we approve, the cancellation of the licence of the petitioner is without authority of law.
Even otherwise we may point out that a reading of the order dated 10.8.2010 discloses total non application of mind. The said order purports to cancel the license merely on the ground of lodging of an F.I.R. and that suspension is going on for a long time thereby causing inconvenience in distribution of essential commodities to the card holders. The said reasons cannot be justified in law to cancel the dealership."
(Emphasis supplied by me) It is undisputed that fair price shop agreement of the petitioner was cancelled by the respondent no. 4 by order dated 31.07.2014 merely on the ground that FIR under Section 3/7 of the E.C. Act has been lodged against him. The aforesaid order of the respondent no. 4 was set aside by the appellate authority by order dated 28.08.2015 in Appeal No. 12 of 2014 and the matter was remitted back to the respondent no. 4 who passed the impugned order dated 14.12.2016 merely on the advise of the D.G.C. (Civil). Since the impugned order dated 14.12.2016 has been passed merely on the basis of advise of the D.G.C. (Civil) and as such it cannot be sustained. The authority entrusted with the duty to pass an order must apply his own mind and should take decision in accordance with law. That apart the cancellation of fair price shop agreement of the petitioner merely on the ground of pendency of a criminal case under Section 3/7 of E.C. Act is unsustainable in view of law laid down by this Court in the case of Jagdish Narayan Mishra (supra) and by the Division Bench in the case of Smt. Raj Kumari Singh (supra).
In view of the aforesaid, the order of suspension as well as the order dated 14.12.2016 passed by the respondent no. 4 cannot be sustained and are hereby quashed. The writ petition is allowed. The fair price shop agreement of the petitioner is restored. The competent authority is directed to take appropriate consequential action forthwith.
Order Date :- 8.3.2017 IrfanUddin