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Sanjeev Kumar Singh v. The Asstt. Commissioner (Food) & Ors. - WRIT - C No. 47920 of 2004 [2007] RD-AH 12630 (23 July 2007)


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(Judgment reserved on 24.05.2007)

(Judgment delivered on 23.07.2007)

Civil Misc. Writ Petition No.47920 of 2004

Sanjeev Kumar Singh Vs. The Assistant Commissioner (Food), Varanasi Mandal, Varanasi and others

Hon'ble S.U. Khan, J.

Heard learned counsel for the parties.

Respondent No.5-Ram Chandra Seth is agreement/licence holder to run fair price shop. Several complaints were made against his irregular and illegal style of working. Inspection was made of his shop on 24.09.2002. The licence was cancelled on 17.04.2003 by District Supply Officer, Varanasi. However the said order was set aside in appeal by Commissioner through order dated 28.05.2004 and matter was remanded to D.S.O., Varanasi and it was directed that the shop must be got inspected by a team of inspectors. The D.S.O. again through order dated 19.08.2004 cancelled the agreement/licence, copy of the said order is Annexure-8 to the writ petition. Against the said order, Ram Chandra-respondent No.5 filed appeal No.214 of 2004. Assistant Commissioner (II), Varanasi Division, Varanasi allowed the appeal on 16.10.2004. The said order of the Appellate Court has been challenged by the petitioner to whom licence was granted, after first cancellation order passed against respondent No.5 in 1999. It appears that for the first time licence of respondent No.5 was cancelled on 09.06.1999. Against the said cancellation order, writ petition No.9855 of 2000 was filed, which was disposed of on 16.01.2001 directing the proper authority (i.e. D.S.O. Varanasi) to decide the matter after hearing the respondent No.5, who was petitioner in the said writ petition. Thereafter, order of cancellation dated 17.04.2003 (supra) was passed by D.S.O., Varanasi.

After earlier remand order passed by the Appellate Court dated 18.05.2004, the D.S.O. Varanasi passed the order on 19.08.2004, copy of which is Annexure-8 to the writ petition. In the said order, several irregularities committed by the respondent No.5 were discussed, which are as follows:

1.Instead of three litre kerosene oil, only 2.5 litre kerosene oil was being distributed to the card-holders on the excessive price of Rs.11/- per litre.

2.Foodgrains were not supplied to Below Poverty Line (BPL) card-holders and at the time of supplying kerosene oil wrong entry was made regarding food-grains on ration cards.

3.Card-holders of Antyodaya were supplied wheat and rice on higher cost, i.e. Rs.2.50/- and Rs.3/- per k.g. respectively.

4.Dileep Kumar S/o respondent No.5 was also agreement/licence holder to run the fair price shop, which was not permissible.

The D.S.O. considered the explanation and evidence adduced by respondent No.5 and found that the charges were proved. In the last paragraph, D.S.O. mentioned that there was no need to make any change in his earlier order dated 17.04.2003 cancelling the licence of Ram Chandra Seth. Against order of D.S.O. Varanasi dated 19.08.2004, appeal was filed by Ram Chandra-respondent No.5 being appeal No.214 of 2004. Assistant Commissioner (Food), Varanasi Division, Varanasi allowed the appeal through order dated 16.10.2004 and set aside the order of D.S.O. Varanasi and again remanded the matter to D.S.O. Varanasi to decide the matter.

The Appellate Court was severely critical of the last paragraph of order of D.S.O. Varanasi. The Appellate Court held that the earlier order of D.S.O. Varanasi dated 17.04.2003 had been set aside in earlier appeal by Commissioner and matter had been remanded, hence in the order dated 19.08.2004, D.S.O. Varanasi should not have observed that there was no need to make any amendment in his earlier order dated 17.04.2003.

Even though I agree with the Appellate Court that the wordings used by the D.S.O. Varanasi in the operative portion of his order dated 19.08.2004 was not correct, however it was by maximum an error of description. The D.S.O. Varanasi considered the charges against respondent No.5, his explanation and evidence adduced by him and came to the conclusion that his agreement/licence to run the fair price shop deserved cancellation. In fact, D.S.O. Varanasi through his order dated 19.08.2004 passed fresh cancellation order. Improper phraseology used by D.S.O. Varanasi in the operative portion of the said order did not deserve setting aside of the said order. As the explanation and evidence adduced by respondent No.5 had thoroughly been considered by D.S.O. Varanasi, hence there was no need to remand the matter again. Appellate Court did not find any fault on merit with the order of D.S.O. Varanasi dated 19.08.2004. The Appellate Court only noted the arguments of the counsel for the appellant Ram Chandra Seth-respondent No.5 in this writ petition.

Accordingly, writ petition is allowed. Order passed by Appellate Court dated 16.10.2004 is set aside. The matter is remanded to the Appellate Court to decide the appeal on merit. Both the parties are directed to appear before the Appellate Court on 30.08.2007. Until decision of appeal, shop in dispute shall be attached with the fair price shop of the adjoining village.




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