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LOCHAN PRASAD versus THE COMMISSIONER, GORAKHPUR DIV. AND ANOTHER

High Court of Judicature at Allahabad

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Lochan Prasad v. The Commissioner, Gorakhpur Div. And Another - WRIT - C No. 2353 of 1999 [2006] RD-AH 2370 (31 January 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.26

CIVIL MISC. WRIT PETITION NO. 2353 OF 1999

Lochan Prasad

versus

The Commissioner, Gorakhpur Division, Gorakhpur & another

HON. SHISHIR KUMAR, J.

The present writ petition has been filed for quashing the orders dated 23.12.1998 and 18.11.1997, Annexures 3 & 2 to the writ petition passed by respondents no.1 and 2 respectively.

The petitioner was allotted the license of fair price shop in the year 1995. It appears that on a complaint, an inquiry was held and by order-dated 18.11.1997, annexure-2 to the writ petition, the license of the fair price shop of the petitioner has been cancelled. The petitioner filed an appeal against the said order. The appellate authority has also dismissed the appeal vide its order dated 23.12.98. It has been submitted on behalf of the petitioner that there is no charge against the petitioner regarding distributing the goods on higher price. It is also not the case of the respondents that the goods are not being distributed to the cardholders. It has been submitted that the petitioner to that effect has submitted an explanation that certain cardholders are not taking the goods; therefore, the remaining goods are being distributed to the villagers of below poverty line who are not the cardholders. In reply to the show cause notice the petitioner has admitted this fact that with the permission of the Gram Pradhan the remaining goods are distributed to the persons who are not cardholders and are below poverty line. Therefore, on this ground the license of the petitioner cannot be cancelled. But the respondent no.2 without considering the aforesaid facts has cancelled the license and the appellate authority without recording a finding to this effect only on the ground that the petitioner himself has admitted this fact that he is distributing the goods to non-cardholders who are below poverty line with the permission of the Gram Pradhan and as such he has contravened the condition of license and has rejected the appeal filed by the petitioner. There is no finding recorded by the appellate authority that the petitioner is selling the goods on higher price and the goods are not being distributed to the valid cardholders. In such a way, the order passed by the appellate authority is liable to be quashed. Aggrieved by the aforesaid order, the petitioner has filed the present writ petition.

The writ petition was entertained and the interim order was granted in favour of the petitioner. The petitioner submits that in view of the interim order passed by this Court, the petitioner is still operating the shop. A counter affidavit has been filed in para 4 of which it has been stated that on 19.9.97 a complaint was made against the petitioner regarding the irregularities committed by the petitioner in distributing the essential commodities upon which an inquiry was made by the Assistant Development Officer and a report to that effect has been submitted. A copy of the said report has been annexed as Annexure-2 to the counter affidavit. The Standing Counsel has brought to the knowledge of this Court that in view of the aforesaid inquiry report that the various statements of the villagers were obtained and they have confirmed that the various irregularities have been committed by the petitioner, as such, the license has correctly been cancelled. Further submission made on behalf of the Standing Counsel is that as the petitioner has himself admitted this fact that he is distributing the goods to non-cardholders, therefore, it is in clear violation of the conditions of license and considering the aforesaid fact the license has correctly been cancelled. The Standing Counsel further submits that inspite of the fact that certain goods were being distributed to non-cardholders with the permission of the Pradhan of the village cannot be said to be valid act by the petitioner because according to the condition of license, the goods has to be distributed to the cardholders only and the same cannot be distributed to non cardholders.

An impleadment application has also been filed on behalf of one Chhedi Yadav. His application was allowed and he has been impleaded  as respondent no.3. The counsel for the respondent no.3 has submitted that as the shop in question has been allotted in his favour after the order passed by the Commissioner confirming the order of cancellation of license of the petitioner, as such, the petitioner has got no right and the writ petition is liable to be dismissed. It has further been submitted on behalf of respondent no.3 that after due inquiry and after  statements of the various villagers, the shop of the petitioner has been cancelled and the appellate authority has clearly held that regarding the irregularity the petitioner himself has admitted this fact, therefore, no interference is called for and the writ petition is liable to be dismissed.

I have heard the learned counsel for the petitioner and the respondents' counsel and have perused the record. From the record it is clear that in reply to the show cause notice the petitioner himself has stated this fact that in good faith the petitioner is distributing the remaining goods to the non cardholders with the permission of the Gram Pradhan to the persons who are below poverty line and there is no charge against the petitioner regarding that he is charging the excess amount on the goods which are being distributed by him. I have perused Annexure-2 to the counter affidavit filed on behalf of the Standing Counsel, which is the report submitted by the competent authority, on the basis of the directions issued to make an inquiry against the petitioner. One of the complaints against the petitioner was that though the goods to the children have been distributed but it has not been counter- signed by the Principle. Regarding the kerosene oil it has also been stated that it is mentioned in the record that it has been distributed for the month of September 1997 but it has not been verified. The finding recorded by the inquiry officer in the last it has been said that probably in view of the aforesaid fact it appears that the petitioner is involved in the black-marketing of the goods. The said report has been submitted on the basis of the probability. No cogent finding or proof to that effect has been submitted by the Inquiry Officer.

The competent authority only on the basis of the report has passed the order and the appellate authority has also not considered the same whether the petitioner has sold out the goods on enhanced price and the appellate court has also only considered that as the petitioner himself has admitted this fact, therefore, there is no force in the appeal filed by the petitioner and has rejected the same-vide its order dated 23.12.98. After going through the evidence on record in my opinion it may be an irregularity but it cannot be said to be illegality which can lead to cancellation of the license of the petitioner. The petitoner himself in his reply has submitted that the charge which has been leveled against the petitioner, the appellate authority has not recorded any finding only on the basis of the admission of the petitioner. The appeal of the petitioner has been dismissed.

In view of the aforesaid fact, in my opinion the order passed by the appellate authority dated 23.12.1998 cannot be sustained. The same is hereby quashed and the matter is remitted back to the appellate authority to consider the case of the petitioner in the light of the observations made above and the appellate authority shall pass a detailed and reasoned order according to law preferably within two months from the date of production of a certified copy of this order before him.

With these observations the writ petition is disposed of. There shall be no order as to costs.

31.1.2006

V.Sri/-


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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