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RAM SINGH versus STATE OF U.P. & ANOTHER

High Court of Judicature at Allahabad

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Ram Singh v. State Of U.P. & Another - WRIT - C No. - 47240 of 2007 [2007] RD-AH 16178 (1 October 2007)

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 AT ALLAHABAD

Court No.9

Civil Misc. Writ Petition No. 47240 of 2007

Ram Singh.....................Petitioner

Vs.

State of U.P.and another........Respondents

Hon'ble V.M. Sahai, J.

Hon'ble S.P. Mehrotra, J.

The present Writ Petition has been filed by the petitioner under Article 226 of the Constitution of India, interalia, praying for quashing the order dated 9.8.2007 (Annexure-8 to the Writ Petition).

By the said order dated 9.8.2007, the licence of the petitioner in regard to Fair Price Shop has been suspended, and the petitioner has been directed to give his written explanation with evidence in regard to the irregularities mentioned in the said order dated 9.8.2007.

From the averments made in paragraph 12 of the Writ Petition, it appears that the petitioner has already submitted his explanation dated 10.9.2007 pursuant to the said order dated 9.8.2007 before the respondent no.2.

While the matter is still pending before the respondent no.2, the petitioner has filed the present Writ Petition challenging the said order dated 9.8.2007.

We have heard Shri S.D. Dubey, learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents at length, and perused the record.

It is submitted by the learned counsel for the petitioner that the charges mentioned in the said order dated 9.8.2007 against the petitioner were not correct in view of the various documents filed alongwith the Writ Petition.

It is further submitted by the learned counsel for the petitioner that the suspension order against the petitioner could not be passed merely on the basis of First Information Report lodged against the petitioner.

The learned counsel for the petitioner has relied upon the following decisions in support of his submissions:

1. Kailash Prasad Yadav and another Vs. State of Jharkhand and another, 2007(4) Supreme 55.

2. Prakash Chandra Pandey Vs. District Magistrate, Mainpuri and others, 1989 All CJ 644.

We have considered the submissions made by the learned counsel for the petitioner.

Having regard to the facts and circumstances of the case and having considered the submissions made by the learned counsel for the parties, we are of the opinion that as the petitioner has already submitted his explanation pursuant to the said order dated 9.8.2007, it will not be appropriate for this Court to go into the merits of the charges made against the petitioner in the said order dated 9.8.2007 in the present Writ Petition. It is for the authority concerned to consider the merits of the charges against the petitioner keeping in view the explanation submitted by the petitioner.

As regards the decision of the Supreme Court in Kailash Prasad Yadav case (supra), relied upon by the learned counsel for the petitioner, the question involved in the said case was regarding the validity of an order passed by the Deputy Commissioner, Sahibganj directing for confiscation of a truck allegedly carrying wheat belonging to the Food Corporation of India. The Supreme Court held that a valid seizure was a sine qua non for passing an order of confiscation of property and concluded that confiscation of the truck allegedly carrying wheat was unsustainable under the Public Distribution System (Control) Order, 2001 and the Essential Commodities Act, 1955. The facts of the said case as given in paragraph 2 of the judgment are reproduced below:

"2. Appellants were owners of a truck. The said truck was hired for transportation of foodgrains by one Kailash Chand Sahu. It was allegedly carrying wheat belonging to the Food Corporation of India. A confiscation proceeding was initiated. An order of confiscation was passed by the Deputy Commissioner, Sahibganj. An appeal preferred thereagainst has been dismissed by the Additional Sessions Judge I, Sahibganj by an order dated 7.03.2005 passed in Criminal (Confiscation) Appeal No. 32 of 2003. Appellants filed a writ petition before the Jharkhand High Court which by reason of the impugned judgment has been dismissed by a learned Single Judge of the said Court."

It is evident from the above-quoted paragraph 2 of the judgment in Kailash Prasad Yadav case (supra) that the order of confiscation was passed after initiating confiscation proceeding. An appeal filed against the order of confiscation was thereafter dismissed. Then the matter came before the Jharkhand High Court in a Writ Petition. A learned Single Judge of the Jharkhand High Court dismissed the said Writ Petition, whereupon an appeal was filed before the Supreme Court.

In the present case, as noted above, the petitioner has been required to show cause by the impugned order dated 9.8.2007, and the licence of the petitioner has been suspended. The matter is still pending before the respondent no.2.

The facts of the present case are thus distinguishable from the facts of Kailash Prasad Yadav case (supra).

In Prakash Chandra Pandey case (supra) the licence of the petitioner under the U.P. High Speed Diesel Oil and Light Diesel Oil (Maintenance of Supplies and Distribution) Order, 1981 was suspended on account of lodging of the First Information Report against the petitioner pursuant to the search made in the business premises of the petitioner.

A Division Bench of this Court in Prakash Chandra Pandey case (supra) held as under (paragraphs 6 and 7 of the said All CJ):

"6. There is no inquiry pending against the petitioner for any contravention of the Control Order, condition of licence or the direction issued thereunder. Licence of the petitioner has been cancelled only on the ground that a first information report has been lodged against the petitioner for keeping about 580 Ltrs. diesel oil in excess of stock and the suspension order has been directed to continue till the criminal case pertaining to excess diesel oil is decided by the court. The suspension order has been passed without giving any notice or opportunity of being heard to the petitioner.

7. The Government or its officers cannot interfere with the right of others unless they can point out some specific rule or law, which authorised their acts. There is no such rule in the Control Order, which empowers the respondents to suspend the licence of the petitioner during the pendency of some criminal case in a criminal court. In absence of any such power the action of the respondents in suspending licence of the petitioner is absolutely without jurisdiction."

From the above-quoted paragraphs, it is evident that in Prakash Chandra Pandey case (supra) no enquiry was pending against the petitioner for any contravention of the Control Order, and the suspension order had been passed only on the ground that a First Information Report had been lodged against the petitioner in the said case, and the suspension order was to continue till the criminal case was decided by the Court.

In the present case, a perusal of the order dated 9.8.2007 shows that even though the said order makes reference to the First Information Report lodged against the petitioner, the said order has not been passed only on the ground of lodging of the First Information Report against the petitioner. Further, the said order dated 9.8.2007 requires the petitioner to submit written explanation with evidence in regard to the irregularities mentioned in the said order.

Thus, the facts of the present case are distinguishable from those of Prakash Chandra Pandey case (supra).

In view of the above, we are of the opinion that the interest of justice would be subserved if the Writ Petition is disposed of with the direction to the respondent no.2 to decide the matter of the petitioner by passing a reasoned and speaking order within a period of six weeks from the date of production of a certified copy of this order before the respondent no.2

The Writ Petition is accordingly disposed of with the direction to the respondent no.2 to decide the matter of the petitioner by passing a reasoned and speaking order in accordance with law within a period of six weeks from the date of production of a certified copy of this order before the respondent no.2.

It is made clear that we have not gone into the merits of the case of the petitioner, as it is for the respondent no.2 to take appropriate decision in this regard.

Dt. 1.10.2007

safi


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