Court No. 21
Civil Misc. Writ Petition No. 36133 of 2009
Virendra Kumar
Vs.
State of U.P. and others
Hon'ble V.K. Shukla, J.
Petitioner has filed present writ petition questioning the validity of the
dated 23.8.2008 passed by the Sub Divisional Magistrate, Pooranpur, District
Pilibhit cancelling the fair price shop licence and order of its affirmance in
appeal dated 11.6.2009 passed by the Commissioner, Bareilly Division,
Bareilly.
Brief background of the case is that petitioner has been fair price shop
licensee, and as per terms and conditions for the purposes of lifting essential
commodities, petitioner was required to deposit requisite amount by
22.7.2008, but on account of this petitioner’s fair price shop licence was kept
under suspension and petitioner was asked to submit his reply. Thereafter
show cause notice was again by mentioning therein that petitioner has
breached terms and conditions of U.P. Essential Commodities Control Order,
2004, order of cancellation was passed. Aggrieved against the same, appeal
has been filed, same has also been dismissed. At this juncture present writ
petition has been filed.
In the present case, time for filing counter affidavit was given on
22.7.2009 and then on 28.4.2010 eight weeks and no more time was
accorded for filing counter affidavit, but till today no counter affidavit has been
filed and thereafter with the consent of the parties, present writ petition has
been taken up for final hearing/disposal.
Sri. Ashutosh Tiwari, Advocate, learned counsel for the petitioner
contended with vehemence that genuine difficulty had been pointed out by the
petitioner for non lifting of supply within stipulated period and matter has not
been dealt with or considered in its correct perspective, as such order
impugned deserves to set aside.
Learned Standing Counsel on the other hand contended that petitioner
himself responsible for such situation, as such no interference should be
made.
2
After respective arguments have been advanced, undisputed factual
position, which is emerging in the present case is that as per roster prescribed
for lifting essential commodities, petitioner was required to make deposit by
22.7.2008. Petitioner had come out with specific case that his wife had been
fallen ill on 21.7.2008 and he had attending her and when she was relieved
from the hospital, then for the purposes of depositing amount in question,
petitioner proceeded to Pooranpur and on account of flood, transportation
was closed down and he went to Pooranpur on foot, but bank was closed and
as such he was not at fault. The appellate forum in the present case has not
proceeded to mention that sufficiency of cause, which has been sought to be
furnished was fabricated cause or it was insufficient cause or incorrect cause
and only ground, which has been sought to be mentioned that within time
frame provided for requisite reply has not been submitted.
Once reasons were there and it was not at all termed to be ingenuine
reason, then in such a situation appellate forum could have taken liberal view
in the matter and could have let of petitioner by giving warning. In the fact of
the present case, orders, which have been passed as such are not being
approved of.
Consequently, orders dated 23.8.2008 and 11.6.2009 are hereby
quashed and set aside.
With these observation, writ petition is allowed.
Dt. 07.07.2010
T.S.