Court No. - 28 Case :- WRIT - C No. - 26790 of 2008 Petitioner :- Ramesh Chandra Respondent :- State Of U.P. And Others Petitioner Counsel :- Vinod Tripathi Respondent Counsel :- C.S.C.,Ashfaq Ahmad Hon'ble Sanjay Misra,J.
Cause list has been revised. Learned Standing Counsel is present
for the respondents. None appears on behalf of the private
respondents.
The petitioner is permitted to implead Sub Divisional Magistrate,
Nakud, Saharanpur as respondent no. 5 in this writ petition. Let
necessary correction be made during the course of the day.
Supplementary affidavit has been filed today. Let the same be
taken on record. By means of this writ petition and supplementary
affidavit the petitioner seeks to challenge the impugned orders
dated 16.4.2009 passed by Commissioner, Saharanpur Division,
Saharanpur and order dated 7.1.2008 passed by the Sub Divisional
Magistrate, Nakud, Saharanpur.
Heard Sri Amarjeet Singh learned counsel for the petitioner and
learned Standing Counsel for the respondents. Counter and
rejoinder affidavits have been exchanged.
The petitioner claims that he was a fair price shop dealer of village
Daidnor, Block Nakud, District Saharanpur and is aggrieved by the
order dated 16.4.2009 passed by Commissioner, Saharanpur
Division, Saharanpur in Appeal No. 29/07-08 under the Essential
Commodities Act whereby the appeal filed by the petitioner has
been rejected and the order dated 7.1.2008 passed by the Sub
Divisional Magistrate, Nakud, Saharanpur has been confirmed.
Learned counsel for the petitioner has submitted that the only
reason for cancellation of his fair price shop dealership was that
the petitioner had indulged in irregularities and was selling
kerosene oil at Rs. 11 instead of Rs. 10.50. He submits that no
specific incident has been reported even in the report of the
Enquiry Officer and general allegations have been made to which
he was required to show cause.
According to Sri Amarjeet Singh the impugned orders have been
passed primarily on the basis that the petitioner has not been able
to produce evidence that he has not committed any irregularity.
According to him when no specific charge with respect to an
identified card holder or incident was made against the petitioner
there was no occasion for him to reply to such non existent charge.
Learned Standing Counsel has tried to justify the impugned orders
by saying that complaints were received against the petitioner and
an enquiry was conducted by the inspector. He states that in an
enquiry it was found that the petitioner is indulging in irregular
distribution of foodgrains and is charging Rs. 11 instead of Rs.
10.50 for kerosene oil. He submits that the enquiry which was
conducted has found those irregularities of the petitioner and hence
the impugned orders based thereupon cannot be said to be illegal.
Having considered the submission of learned counsel for the
parties and perused the record from both the impugned orders it is
quite clear that allegations were made in a complaint against the
petitioner but such allegations were of a general nature by saying
that in several months the petitioner has not distributed foodgrains
to card holders. Neither the card holders nor the name of the card
holder has been mentioned in the said complaint. Even the
complaint with respect to the months is general and no date has
been given. It is stated that in several months he has committed
those irregularities. Out of 12 complainants 11 complainants filed
affidavits before the authority in favour of the petitioner.
Consequently even if one complainant was persisting with the
complaint he ought to have given specifics of the irregularities
committed by the petitioner. A general allegation that the
petitioner is committing the irregularities in distribution of
foodgrains cannot be made a ground for cancellation of his fair
price shop agreement which is admittedly a contract between the
parties. If there is no breach of the contract it cannot be cancelled.
In so far as the allegations that the petitioner is selling kerosene oil
at Rs. 11 per litre instead of Rs. 10.50 litre it is not supported by
any specific instance or evidence and it is a general allegation. The
appellate authority has also dittoed the findings of the Sub
Divisional Magistrate in its order and has not given any reason as
to how and when the petitioner had committed an irregularity, in
the absence of any such reason the impugned order appears to be
arbitrary.
Moreover fair price shop dealership of the petitioner has been
cancelled also on the ground that the petitioner has not been able
to give satisfactory explanation. If the petitioner was required to
give explanation to a charge framed or alleged against him the
charge or allegations could be replied. The show cause notice was
general in nature and the petitioner has replied accordingly.
Consequently it cannot be said that the licence of the fair price
shop of the petitioner should be cancelled because his explanation
is not satisfactory.
For the aforesaid reasons the impugned orders cannot be up held.
The impugned order dated 16.4.2009 passed by Commissioner,
Saharanpur Division, Saharanpur in Appeal No. 29/07-08 and the
order dated 7.1.2008 passed by the Sub Divisional Magistrate,
Nakud, Saharanpur are hereby set aside. The respondent no. 5 is
directed to proceed in accordance with law.
The writ petition stands allowed.
No order is passed as to costs.
Order Date :- 28.7.2010
Pravin