Allahabad High Court
Shiv Darshan vs State Of U.P. And 3 Others on 31 January, 2018
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 26 Case :- WRIT - C No. - 22021 of 2016 Petitioner :- Shiv Darshan Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Kaushal Kishore Mishra Counsel for Respondent :- C.S.C. Hon'ble Mrs. Sangeeta Chandra,J.
Oral This writ petition has been filed challenging the order passed by the Licensing Authority dated 13.3.2015 cancelling the Fair Price Shop license of the petitioner and the order dated 16.4.2016 passed by the Appellate Authority rejecting his Appeal.
It is the case of the petitioner that the petitioner had fallen sick and had submitted a leave application on 14.8.2014 saying that he was unwell and therefore he cannot distribute the food grains for the month of August. However on 4.7.2014 some complaints had been made against the petitioner by some villagers and on 16.8.2014, the Area Supply Inspector and the Naib Tehsildar Sadar visited the village in question and found the shop of the petitioner closed and recorded the statements of various villagers, who did not get any food grains for the month of August 2014 and they stated that the licensee either gives food grains or gives sugar or gives kerosene, but not all scheduled commodities together to the card holders. Moreover he also over charges for the scheduled commodities. Individual statement as well as joint statement were recorded of some Antyoday, BPL and APL card holders.
The Gram Pradhan's statement was also recorded that for the past three months the petitioner's distribution to Antyoday, BPL and APL card holders was not in accordance with law. One Gram Panchayat Vigilance Committee member Bachoon son of Bachoo also stated that the petitioner never approached him for signature on the distribution certificate and if such distribution certificate has been issued in his name, the same should be treated as forged.
The Fair Price Shop license of the petitioner was suspended on 19.8.2014 and time was given to the petitioner to submit his explanation. The petitioner has alleged that he submitted one explanation on 31.10.2014 annexing therewith the Stock Register and the Sale Register and copy of earlier application made by him to the SDM that nine BPL and eight Antyoday card holders did not lift grain from his Fair Price Shop under a conspiracy to malign him and give support to the village Pradhan in his campaign against the petitioner. He also submitted with the said explanation, certain affidavits filed by twenty villagers in support of the case of the petitioner.
It has been submitted by the petitioner that the petitioner had been sick from 14.8.2014 and remained sick till 16.9.2014 and for this he has submitted medical certificate along with application on 14.8.2014 and again on 19.9.2014. The documents submitted by the petitioner were not considered at all by the Licensing Authority and the impugned order of cancellation of Fair Price Shop license was passed by the SDM in an arbitrary manner observing that no documentary evidence has been submitted by the petitioner and mere statement without documentary evidence in support of such statement made by the licensee cannot be relied upon.
It has been submitted by the learned counsel for the petitioner that from a perusal of the impugned order of cancellation of Fair Price Shop license, it is evident that the charge against the petitioner has been mentioned and the reply given by the petitioner in his explanation has been mentioned serially and thereafter no independent conclusion has been arrived at, but his explanation has been rejected in a summary manner and the license of the petitioner has been cancelled looking into heinous conduct of the petitioner.
Aggrieved by the order passed by the Licensing Authority, the petitioner approached the Commissioner. The Commissioner rejected the Appeal placing reliance upon the impugned order of cancellation of Fair Price Shop without looking into the documentary evidence and without coming into an independent conclusion with regard to guilt or otherwise of the petitioner.
Learned standing counsel has pointed out from the record that the petitioner failed to submit any explanation as alleged by him on 31.10.2014 infact when notice was issued to him on 6.12.2014 giving him last opportunity to submit an explanation, the petitioner submitted his explanation on 27.1.2015 along with Annexure and the said explanation has been duly considered by the Licensing Authority.
It has also been pointed out by the learned standing counsel that the allegation against the petitioner is serious that he did not give scheduled commodities at the prescribed rate and in the prescribed quantity to all categories of card holders. With respect to the medical leave application of the petitioner, it has been submitted by the learned standing counsel that distribution of Fair Price Shop quota usually occurs in the first half of the month, therefore such distribution ought to have occurred in the first two weeks of August 2014, and therefore in the medical leave application itself, the petitioner has mentioned that he is unable to lift the quota for the forthcoming month because of his illness and the same to be kept in safe custody. This lifting of quota that has been referred to in the application dated 14.8.2014 related to the month of September 2014, and not the month of August 2016.
However the complainants have made statement before the team of Supply Inspector and Naib Tehsildar that they have not received scheduled commodities regularly for the past three months or more. Besides, the allegation against the petitioner is also to the effect that the distribution certificate has not been signed by the Gram Panchayat Vigilance Committee member and the distribution certificate submitted by the petitioner is forged.
In rejoinder, the learned counsel for the petitioner has pointed out from the suspension order that the enquiry team had found certain persons in the village, who had supported the case of the petitioner even during the time of on the spot inspection of the village. Moreover, the allegation was with respect to the month of August and with respect to the month of September, the villagers have said that they got their supply of scheduled commodities. It is impossible for enquiry to be held on 16.8.2014 in which the villagers would have made a statement that they got their food grains supplied of September 2014.
Learned counsel for the petitioner has pointed out from the orders impugned that there is no independent consideration of the explanation given by the petitioner at all, as has been submitted by the learned counsel for the petitioner.
I have also gone through the orders impugned and I find that merely enumeration of the charges has been made and the reply given by the petitioner to the said charges, there is no independent examination of the Stock Register or the Sale Register and no independent conclusion arrived at by the Licensing Authority or by the Commissioner.
The charges may be grave against the licensee, but they have to be proved before any punishment order can be passed. In this case, the charges were no doubt very grave regarding over charging, short weighting and irregular distribution, but the charges along with explanation of the petitioner should have been considered by the Licensing Authority and then an independent conclusion should have been arrived at which was not done.
The impugned orders are set aside. The matter is remanded to the Licensing Authority to consider afresh. The petitioner's explanation already given by him on 27.1.2015 shall be considered along with documentary evidence filed with it by the Licensing Authority and appropriate orders be passed within a period of six weeks from the date a certified copy of this order is produced before him.
Since the order of cancellation and the order passed by the Appellate Authority rejecting the Appeal has been set aside by this Court, the current procedure that has been adopted by the State respondents for distribution of scheduled commodities in the village concerned shall continue only on an adhoc basis till such time that final orders are passed by the Licensing Authority after reconsideration of the case of the petitioner.
The writ petition is allowed to this extent.
Order Date :- 31.1.2018 Arif