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Birendra Kumar v. State Of U.P.And Another - WRIT - C No. 31503 of 2004 [2006] RD-AH 7182 (4 April 2006)


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Court no.25

Civil Misc. Writ Petition No. 31503 of 2004.

Birendra Kumar.   Petitioner.


State of U.P. and another.                 Respondents.


Hon'ble Rajes Kumar, J.

By means of the present writ petition, petitioner has challenged the order of the Commissioner dated 29th July, 2004 passed in appeal filed against the order of the Deputy Collector, Bidhuna dated 14.11.2003.

In the writ petition, it is stated that the petitioner was granted licence in the year 1990 for running fair price shop in respect of the card-holders of Gram Panchayat Raipur Phaphoond, Tahsil Bidhuna, District Auraiya on the basis of the resolution of the Gram Sabha passed under the provisions of the Government Order dated 3.7.1990 and Uttar Pradesh Scheduled Commodities Distribution Order, 1990 issued by the State Government in exercise of its power under section 3 of the Essential Commodities Act and since then the petitioner was continuously running the fair price shop situate in village Raipur Phaphoond. The Deputy Collector, Bidhuna on the basis of the complaint received against the petitioner issued a show cause notice dated 28/29.5.2003 and thereafter vide order dated 14.11.2003, agreement has been cancelled and the amount of security of Rs.250/- has been forfeited. The agreement has been cancelled on the ground that the petitioner could not distribute the rice and kerosene oil to the consumers;  the agreement of the petitioner was suspended vide letter dated 5th March, 2003 on the ground that in the months of November, 2002 to February, 2003 and April, 2002 to February, 2003 the food were not supplied to the students of Primary School, Raipur Phaphoond and primary School, Nagla Jamuna. Against the order of the Deputy Collector, petitioner filed appeal before the Commissioner. In the grounds of appeal, it has been categorically stated that the reply to the show cause notice was filed on 8.8.2003, but the same has been conveniently ignored. The Commissioner by the impugned order rejected the appeal on the ground that the petitioner has not filed any reply to the show cause notice and, therefore, the stand taken in the show cause notice has been upheld.

Heard learned counsel for the parties.

Learned counsel for the petitioner submitted that the reply to the show cause notice was filed on 8.8.2003 on which the Deputy Collector has also made an endorsement on the same date, but the agreement has been cancelled without considering the reply to the show cause notice and the said order has been upheld by the Commissisoner illegally.

Learned Standing Counsel submitted that in the counter affidavit, it has been stated that the endorsement of the Deputy Collector as alleged is forged and has not been filed before the Deputy Collector.

Having heard the learned counsel for the parties and on the facts and circumstances of the case, in my view the matter requires fresh consideration by the Commissioner, Kanpur.

It is not in dispute that in the grounds of appeal, the petitioner has specifically stated that the reply to the show cause notice was filed on 8.8.2003. Perusal of the order of the Commissioner shows that the said submission of the petitioner has not been considered. Thus, in my view, the order of the Commissioner is vitiated.

In the result, writ petition is allowed. The order of the Commissioner dated 2/7.2004 is set aside and the matter is remanded back to the Commissioner to decide the appeal afresh after giving opportunity to the parties. The Commissioner may also consider whether the petitioner, in-fact filed any reply to the show cause notice as claimed by it or not and thereafter, decide the appeal afresh on merit, preferably, within a period of three months from the date of filing of certified copy of this order. It is made clear that this Court has not adjudicated the issue on merits.




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