High Court of Judicature at Allahabad
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Sanjeev Kumar v. State Of U.P. And Others - WRIT - C No. 29557 of 2007  RD-AH 11287 (5 July 2007)
Hon'ble Arun Tandon, J.
The relief prayed for in the present writ petition has been confined to the issue that if the Commissioner came to a conclusion that certain documents including the enquiry report dated 03.3.2006 statement of certain residents of village have not been examined by the Sub Divisional Officer before passing the impugned order of cancelling of the fair price shop agency, he could have at best set aside the order so passed with a further direction that the Sub Divisional Officer may reconsider the matter with reference to the documents concerned to the extent it consigns the case to records. Therefore petitioner seeks quashing of the impugned order.
Standing Counsel as well as counsel for the respondent no. 4 on being confronted with the stand fairly conceded that the Sub Divisional Officer may re-examine the matter with reference to the enquiry report dated 03.3.2006 and other documents referred to in the order of the Commissioner, Agra Division, Agra and during this period respondent no. 4 may be permitted to run the shop.
I have heard counsel for the parties and have gone through the records of the case.
The Commissioner in his order dated 22.2.2007 has referred to the report as well as the statement of the residents of Gram Panchayat which have not been considered by the Sub Divisional Officer while passing the order of cancellation of the agency of the Appellant. In such circumstances this Court may record that no illegality has been committed by the Commissioner by setting aside the order of the Sub Divisional Officer to the extent indicated in the order itself.
The issue which remains for consideration is as to whether the Commissioner after recording the aforesaid finding should have remitted the matter to the Sub Divisional Officer for afresh or not.
In the opinion of the court if certain documentary evidence for arriving at a conclusion is ignored by the first authority such an order can be set-aside by the Appellate Authority and that the matter may be examined on merits with reference to the report and the evidence on record by the First Appellate Authority and it may record its own finding of facts or else the matter has to be remanded for reconsider to the original authority. None of the aforesaid course open in law has been followed under the impugned order. Accordingly the part of the order of the Commissioner in so far as it consigns the case to record is hereby quashed.
Let Sub Divisional Officer re-examine the matter after taking into consideration the enquiry report dated 03.3.2006 as well as the statement of other residents of the village as recorded in the order of the Commissioner, preferably within four weeks from the date a certified copy of this order is filed before the Sub Divisional Officer. The sub Divisional Officer shall afford opportunity of hearing to the parties concerned. Since the earlier order of Sub Divisional Officer of cancellation of the fair price shop of the Respondent no. 4 has been quashed by the Appellate Authority, it is further provided that the respondent no. 4 shall be permitted to run his fair price shop agency till fresh orders are passed by the Sub Divisional Officer as indicated above.
Writ petition is partly allowed subject to the observations made above.
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