Court No. - 28 Case :- WRIT - C No. - 27486 of 2008 Petitioner :- Gyan Bahadur Singh Respondent :- State Of U.P. Thru' Secy. Food & Civil Supply & Others Petitioner Counsel :- Rajesh Kumar,A.C. Tiwari,Ajay K Banerjee,Jitendra Prasad,K.K.Chaurasiya Respondent Counsel :- C.S.C. Hon'ble Sanjay Misra,J.
Heard Sri A.K. Banerjee learned counsel for the petitioner and learned
Standing Counsel for the respondents.
Counter affidavit, supplementary counter affidavit, rejoinder affidavit and
supplementary rejoinder affidavit are available on record.
The petitioner is aggrieved by the order dated 13.5.2008 passed by the
Deputy Commissioner (Food) Vindhyachal Mandal, District Mirzapur (respondent
no. 2) whereby his Appeal No. 299/2008 filed under Clause 28 (3) of the U.P.
Essential Commodities Distribution Order, 2004 has been rejected as also the
order dated 22.2.2008 passed by the District Supply Officer, Mirzapur (respondent
no. 3) whereby the fair price shop licence of the petitioner situated at village Gaura,
Police Station, Jigna, District Mirzapur has been cancelled upon irregularities
having been found in an inspection made at the shop on 6.6.2007.
Learned counsel for the petitioner has submitted that earlier the shop was
suspended and cancelled where against he had filed writ petition which was
allowed and the matter was remitted back to the authority to give due opportunity
to the petitioner before passing any order against him. He submits that by the
impugned orders the respondents have not considered the sale register of the
petitioner and the allegations made against him are due to political pressure of a
local MLA and as such the same requires to be set aside. He has also referred to
the findings recorded by the District Supply Officer in the impugned order dated
22.2.2008 to state that the explanation of the petitioner was not properly
considered and there was no mention of his sale register in the decision taken by
the authorities.
Having considered the submission of learned counsel for the petitioner and
perused the record the District Supply Officer in the order dated 2.2.2008 has
considered the explanation of the petitioner on each and every allegation made
against him separately and has found that he did not produce the sale register and
in his evidence he has clearly stated that he has not entered the stock sale made
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by him in the sale register. The authority has also recorded that during the
inspection made at the shop there was irregularity in the amount of kerosene oil
found at his shop and although he has filed affidavit of several card holders in his
favour the same has been considered as Paishbandi on behalf of the petitioner
particularly because in the inspection the irregularities were found to which he has
not given any evidence to disprove nor his reply was satisfactory. The District
Supply Officer has recorded a finding of fact regarding non maintenance, non
production of the sale register and the other irregularities committed by the
petitioner.
The appeal of the petitioner has also been dismissed and the appellate court
has gone into each and every explanation given by the petitioner in detail against
the finding recorded by District Supply Officer and has found that the irregularities
were established and the petitioner has not produced the sale register even before
the appellate authority. The finding recorded by the appellate authority is quoted
here under:-
“eSusa mHk; i{kksa ds fo}ku vf/koDrkx.k }kjk izLrqr rdksZ dks lquk rFkk
i=koyh ij miyC/k vfHkys[kksa dk HkyhHkkWfr vuq’khyu ,oa ijh{k.k fd;k A i=koyh
ds voyksdu ls Li”V gS fd Vhe }kjk vihykFkhZ dh nqdku dh tkWp ds le;
LVkd jftLVj izLrqr fd;k x;k A vihykFkhZ }kjk fdlh Hkh vko’;d oLrq dk
forj.k jftLVj ugha izLrqr fd;k x;k rFkk ;g crk;k x;k fd ek= jk’ku dkMZ
ij gh forj.k vafdr fd;k tkrk gS A ekg ekpZ vizSy rFkk ebZ 07 esa izR;sd ekg
esa 1870 yh0 feVVh dk rsy mBku djus ds mijkUr mls fu;fer :i ls vken o
LVkd iath esa /kVk;k ugha x;k gS A bl izdkj ekSds ij nqdku esa 350 yh0 feVVh
dks rsy ?kVkus ds ckn LVkd esa 5260 yh0 feVVh dks rsy gksuk pkfg, Fkk tks
okLrfod LVkd ls de ik;k x;k A fujh{k.k ds le; feVVh ds rsy dk forj.k
jftLVj vR;f/kd u djus rFkk ekaxs tkus ij izLrqr ugh fd;k x;k A vihykFkhZ }
kjk v/khuLFk U;k;ky; esa izLrqr Li”Vhdj.k ls lkFk xzke iz/kku o dfri;
vUR;ksn;@ch0ih0,y0 dkMZ/kkjdks dk la;qDr c;ku o ‘kiFk i= ek-
cpko@is’kcUnh ds :i es izLrqr fd;s x;s gS A vihykFkhZ }kjk ekg twu 07 ds
fy, 05 dq0 phuh dk mBku dj fnukad 1-06-07 ls forj.k fd;k tkuk n’kkZ;k
x;k gS tcfd ‘kklukns’k das vuqlkj ekg dh 05 rkjh[k ls vken gq, LVkd dk
lR;kiu ds mijkUr forj.k djuk pkfg, Fkk A ch0ih0,y0 o vUr;ksn; ;kstuk dk
xsgW forj.k ds i’pkt LVkd esa 16-20 dq0 miyC/k gksuk pkfg, Fkk ijUrq 21 cksjh
izR;sd esa 50 fdxzk0 gh ik;k x;k tks 11 cksjh izR;sd esa 50 fdxzk0 de Fkk A blh
izdkj ch0ih0,y0 o vUR;ksn; ;kstuk dk pkoy forj.k ds i’pkr LVkd esa 40-50
dq0 gksuk pkfg, Fkk ijUrq 43 cksjh izR;sd esa 50 fdxzk0 de ik;k x;k A ‘kklukns’k
ds vuqlkj mfpr nj fodzsrk dks vuqc?ka dh ‘krksZ ds vuqlkj fcdzh jftLVj ,oa
jk’ku dkMksZ esa izfof”V vafdr djds gh vko’;d oLrqvksa dk forj.k djuk pkfg,
vkSj izfrfnu forj.k ds i’pkr vfHkys[kksa esa izfof”V vafdr djuk pkfg, ijUrq
vihykFkhZ }kjk ,slk ugh fd;k x;k A bl izdkj m0iz0 vuqlfw pr oLrq forj.k
vkns’k 2004 dk mYya/ku fd;k x;k A mijksDr vfu;ferrkvksa ds lEca/k esa
vihykFkhZ ds fo:} vko’;d oLrq vf/kfu;e 1955 dh /kkjk 3@7 ds varxZr
fnukad 6-06-07 dks gh Fkkuk ftxuk esa izkFkfedh Hkh ntZ djkbZ xbZ tks l{ke
U;k;ky; esa fopkjk/khu gS A Li”V gS fd vihykFkhZ dk mijksDr d`R; m0iz0
vuqlwfpr oLrq forj.k vkns’k 2004 esa fufgr vuqc/ka dh ‘krksZ dk Li”V mYya/ku gS
A rnuqlkj v/khuLFk U;k;ky; dk vkns’k fof/kiw.kZ gS vkSj rF;ksa ds vk/kkj ij
3ikfjr fd;k x;k gS ftlesa fdlh gLr{ksi dh vko’;drk ugh gS vr% vihy fujLr
fd;s tkus ;ksX; gS A
mijksDrkuqlkj vihy fujLr dh tkrh gS A v/khuLFk U;k;ky; ds vfHkys[k
okil Hkstk tk;s rFkk bl U;k;ky; dh i=koyh nkf[ky nQrj gks A”
From the aforesaid finding recorded by the appellate authority it appears
that the irregularities committed by the petitioner were clearly proved beyond doubt
since he did not produce the sale register with respect to the sales of essential
commodities made by him.
Even in this writ petition the aforesaid sale register has not been annexed so
as to find any substance in the submission of the petitioner that his sale register
was produced but it was not considered.
In so far as the allegation that the entire exercise has been done due to
political interference is concerned it will be seen that the local MLA appears to
have recommended action on the complaint made by Sri Udai Bahadur Singh
against the petitioner. Such recommendation made by the local MLA cannot be
said to be one where the fair price shop has been cancelled due to political
pressure. The local MLA being a representative of the people can always ask the
administrative authorities to look into any complaint received from the citizens
against fair price shop owner. Mere asking the authorities to look into the matter
cannot be brought into the ambit of political pressure exercised by the local MLA.
It will be seen from the record that an F.I.R. had been lodged and a
chargesheet has been filed against the petitioner.
Learned counsel for the petitioner has placed reliance on a decision of this
court in the case of Gun Pratap Singh Vs State of U.P. and Others reported in
2009 (9) ADJ 803 and states that when oral allegations are made on political rivalry
and stock register has not been signed by the authority and which was not a
charge in the show cause notice the cancellation would be un-justified.
In so far as the aforesaid submission is concerned, in the present case there
was a written complaint and not an oral complaint. The local MLA being
representative of the people had recommended the complaint to the authority for
necessary action which cannot be said to be a reason for cancellation of the fair
price shop of the petitioner due to local political rivalry more particularly because
the impugned orders contained the detailed description of the irregularities
committed, the details of the show cause notice the reply of the petitioner and his
evidence wherein the irregularities have been found.
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In so far as the stock register and sale register is concerned the petitioner
admittedly did not produce it either at the time of inspection of before the District
Supply Officer or before the appellate authority and it has not even been produced
before the writ court. As such no benefit can be given to the petitioner on the basis
of the judgement in Gun Pratap Singh (supra).
He has also relied upon a decision of this court in the case of Buddhi Sagar
Yadav Vs State of U.P. and others reported in 2009 (8) ADJ 765 to state that even
if the SDM is not satisfied with the explanation furnished by the fair price shop
owner the Commissioner in appeal having very wide powers could examine the
factual issues and he was under an obligation to consider all the factual pleas
raised by the fair price shop owner. In the case of Buddhi Sagar Yadav the court
found that the Commissioner has failed to exercise his jurisdiction while confirming
the order of SDM.
In the present case the circumstances are not such as were in Buddhi Sagar
Yadav’s case. The finding of the Commissioner as quoted above indicates that the
Commissioner has considered the allegations against the petitioner and
explanation given by him. Hence the petitioner cannot be granted any benefit on
the basis of the aforesaid decision since the circumstances are different.
The petitioner has also placed reliance on a decision of this court in the case
of Abu Baker Vs State of U.P. and others reported in 2010 (6) ADJ 339 to submit
that when an order is passed cancelling the fair price shop agreement without
affording any opportunity and in contravention of the principles of natural justice it
requires to be set aside.
Admittedly in the present case the earlier orders passed against the
petitioner had been set aside and remitted back by this court in the earlier writ
petition for the aforesaid reason but now by the impugned orders the petitioner has
been given full opportunity of explaining on each and every factual controversy
raised by him and it has been considered and decided by the impugned orders.
Consequently it cannot be said that the impugned orders are in contravention of
the principles of natural justice.
The findings recorded in the impugned orders are findings of fact on the
basis of material available on record. There is no such material available in this writ
petition to enable this court to interfere in the findings of facts recorded by both the
authorities. The petitioner has failed to produce or annexe the sale register to show
his bonafide even before this court.
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For the aforesaid reasons the writ petition has no merit. It is accordingly
dismissed.
No order is passed as to costs.
Order Date :- 9.8.2010
Pravin