Court No. 21
Civil Misc. Writ Petition No. 10553 of 2009
Bhola Yadav
Vs.
State of U.P. and others
Hon'ble V.K.Shukla,J.
Present writ petition in question has been filed questioning the validity
of the order passed by Licensing Authority and the order of its affirmance in
appeal by Appellate Forum dated 04.10.2008 and 13.01.2009 respectively.
Brief background of the case is that first information report was
lodged on 10.11.2005 qua the incident said to have taken place on
08.11.2005 wherein it was alleged that petitioner has sold two bags of
controlled rice to one Chagur son of Ganpat for a sum of Rs. 6.50 per kg.,
under 3/7 Essential Commodities Act being case crime no. 574 of 2005 at
Police Station Lar District Deoria. Based on the said F.I.R. Licensing
Authority proceeding to pass order of suspension on 14.11.2005. In the said
criminal case concerned police after investigating the matter filed final
report. Concerned Chief Judicial Magistrate, Deoria was not satisfied with
the said submission of final report, in this background he rejected the final
report and asked for reinvestigation in the matter. Against the same
Criminal Misc. Writ Petition had been filed before this Court and this Court
has stayed the operation of the said order passed by Chief Judicial
Magistrate. Petitioner placing reliance on the order passed by this Court
requested the authority to restore his fair price shop license. Licensing
Authority has considered the request of the petitioner and proceeded to
pass order of cancellation. Aggrieved petitioner preferred Appeal and same
has also been dismissed. At this juncture present writ petition in question
has been filed.
Counter affidavit has been filed and to the said counter affidavit
rejoinder affidavit has also been filed, and after pleadings inter se parties
have been exchanged present writ petition has been taken up for final
hearing and disposal with the consent of the parties.
Sri Anil Kumar Bajpai, learned counsel for the petitioner contended
with vehemence that in the present case order of cancellation and order of
2
its affirmance are clearly vitiated in law, inasmuch as said order has been
passed without providing opportunity of hearing to the petitioner and that
too without there being any material in support of the same, as such writ
petition in question deserves to be allowed.
Countering the said submission learned Standing counsel on the other
hand contended that in the present case rightful action has been taken and
no interference should be made.
After respective arguments have been advanced factual position
which is emerging in the present case that on account of complicity of
petitioner in crime no. 574 of 2005 under Section 3/7 Essential
Commodities Act. Licensing Authority in its wisdom on account of said F.I.R.
proceeded to pass order of suspension and attached the fair price shop of
the petitioner. In the criminal case which has been so filed police after
investigation submitted final report. Said final report has not been accepted
by the Chief Judicial Magistrate Deoria and orders were passed for
reinvestigation and against the same Criminal Misc. Writ Petition has been
filed and this Court proceeded to pass interim order and thereafter
petitioner has prayed for restoration of his fair price shop license. The
request which has been made for restoration of fair price agency cannot be
said to be justifiable request specially when qua criminal case lodged
against him matter has not been resolved and final report has not been
accepted and at the instance of the petitioner matter is still pending before
this Court and till petitioner was not cleared there was no occasion for ipso
facto restoration of fair price shop license during continuance of the order of
suspension. In the fact of the case once order of suspension has been
passed on account of complicity of petitioner in criminal case and the said
matter was still subjudice then at the best order of suspension could have
been continued in stead of proceeding to pass order of cancellation as has
been done in the present case and that too without making further enquiry
into the matter. Order of cancellation in the present case has been passed
without providing opportunity of hearing to petitioner as on said score at no
point of time any requisite opportunity of hearing has been provided to
petitioner informing and intimating him that these are the charges which
petitioner is required to submit reply and then followed by decision. In such
3
a situation order of cancellation has been passed without holding any
enquiry, as such same is not approved of and in this background order of
cancellation and order of its affirmance in appeal both are hereby quashed
and set aside.
In the present case order of suspension has been passed on
14.11.2005 and since then considerable period have been elapsed till date
and as far as regular departmental inquiry is concerned same has not at all
been undertaken, in this background Licensing Authority may in its wisdom
chose either to continue with suspension till petitioner is not cleared of
criminal charges and alternatively initiate regular departmental inquiry qua
the irregularities committed by the petitioner in respect of black marketing
of essential commodities on question. Decision in this regard be undertaken
by Licensing Authority preferably within next four months from the date of
presentation of certified copy of this order.
With the above direction present writ petition is allowed and disposed
of.
Dated 16th July, 2010
Dhruv