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Sunil Kumar v. State Of U.P. & Others - WRIT - C No. 8471 of 2001  RD-AH 7630 (15 December 2005)
Civil Misc.Writ Petition No. 8471 of 2001
State of U.P. through Secretary, Food and Civil
Supplies, Lucknow and others
Hon.Shishir Kumar, J.
This writ petition has been filed for quashing the orders dated 4.3.1999 and 31.1.2001 (Annexures 17 and 1 to the writ petition).
The facts arising out of the present writ petition are that the petitioner was granted a license of the fair price shop at Mohalla Lal Sarai Nagina District: Bijnor in the year 1986 as an unemployed graduate. The said permission was granted for a period of one year and was to be renewed year to year. The opposite party has issued a Government Order dated 19.2.1992 whereby a Screening Committee was formed for the purposes of screening. The working of all the fair price shop situated under the urban area of U.P. It appears that on the basis of the recommendations of the Screening Committee, the respondent No.4 has issued a show cause notice to the petitioner on 27.4.1992 stating certain irregularities. The petitioner submitted a reply to the show cause notice on 30.4.1992. The renewal of the agreement of the fair price shop of the petitioner as well as the various other fair price shop holders of urban area were refused. The petitioner as well as other holders of fair price shop filed a Writ Petition No.1864 of 1992 before the Lucknow Bench. It is submitted that various other writ petitions were also filed and by a common order the writ petition was dismissed by the Court. Subsequently, the matter went to the Hon'ble Supreme Court and the Apex Court has also dismissed the same vide its order dated 27.7.2001 giving a liberty to file an appeal and for a period of three months status quo order has been passed by the Hon'ble Supreme Court.
It is also submitted that the Government Order was also under challenge. In the meantime the government has issued a Government Order dated 7.4.1993 and introduced a policy for execution of one time agreement regarding fair price shop of urban area. In pursuance of the aforesaid Government Order, the petitioner deposited the amount for one time agreement and after completing the all the formalities an agreement was executed in favour of the petitioner by the respondent No.4 on 22.5.1993 for running the fair price shop. Petitioner submits that from that date the petitioner is continuously running the fair price shop and at no point of time there is any complaint.
It appears that after dismissal of various cases before the High Court as well as the Apex Court the Secretary, Uttar Pradesh Sashan had issued a Government Order dated 15th July, 1998 which has been filed as Annexure 9 to the writ petition directing the authorities that on the basis of the report of the Screening Committee certain fair price shops were located for not functioning properly and as the litigation has come to an end and all the petitions pending before the High Court as well as before the Supreme Court have been dismissed, therefore, the actions against the fair price shops holders be taken according to the report of the Screening Committee which was constituted on the basis of the Government Order dated 19th February, 1992. Petitioner submits that in view of the aforesaid direction the license of the fair price shop of the petitioner has been cancelled. Before cancellation of the aforesaid agreement no notice and opportunity has been given to the petitioner.
Aggrieved by the aforesaid order the petitioner has filed an appeal and that appeal too has been dismissed. Aggrieved by the aforesaid order the petitioner has approached this Court.
It has been contended on behalf of the petitioner that the Screening Committee was constituted in the year 1992 and regarding the functioning of the petitioner the performance during 1992 has been taken into consideration. In the year 1993, on the basis of the Government Order issued by the State Government for awarding one time license of the fair price shop the petitioner was considered and an agreement was executed in favour of the petitioner. From the date of subsequent agreement there is no complaint regarding performance and distribution of the goods by anybody, therefore, the agreement of the petitioner cannot be cancelled on the basis of the report of the Screening Committee of 1992. In the year 1992 permission for distribution of goods was for a period of one year only, that has already lapsed, therefore, on the basis of report of 1992 that cannot be a ground for cancellation of the agreement of the petitioner for distribution of goods.
The further submission of the petitioner is that the petitioner had at no point of time has violated any condition of the agreement dated 22.5.1993, therefore, the respondents have got no jurisdiction unless and until they are satisfied that the petitioners have in any way violated the terms of agreement dated 22.5.1993. Unless and until there is a satisfaction on behalf of the respondents regarding violation of the subsequent agreement, placing reliance upon the report of the Screening Committee of 1992, cannot be a ground for cancellation of the agreement which was not in existence at the time when the Screening Committee has given its report.
It has further been submitted on behalf of the petitioner that specific grounds have been taken in the appeal which was filed before the Commissioner but the appellate authority has not considered the same and only on the basis of the report of the Screening Committee and without looking into the fact that whether the subsequent agreement executed between the parties can be cancelled only on the basis of the Screening Committee report of 1992. It was also not the case of the respondents that the petitioner in any way has violated the condition of the agreement after 1993 therefore, the petitioner submits that the appellate order is liable to be set aside and the petitioner be permitted to continue to run their fair price shop. Aggrieved by the aforesaid order passed by the appellate authority, the petitioner has approached this Court.
Notices have been issued and the respondents have filed a counter affidavit. In paragraph 7 of the said counter affidavit it has been stated that a show cause notice was given on 27.4.1992 and a reply to that effect was also invited. As the matter was pending before the various Courts, therefore, action could not be taken. In para 9 of the said counter affidavit, it has been stated that on 23.12.1992 agreement was renewed for the year 1993 and subsequently it has been renewed on the basis of the order of the High Court. It has further been submitted on behalf of the respondents that as after the dismissal of the various litigation which were pending in various courts, the State Government had issued an order dated 15th July, 1998 to cancel the agreement of the fair price shop holders on the basis of the report of the Screening Committee and as such, the actions have been taken as the performance of the petitioner was not up to the mark according to the report submitted by the Screening Committee. It has further been submitted that each and every aspect has been considered by the Licensing Authority as well as by the Appellate Authority. There is no illegality in the order passed by the appellate authority and the writ petition is liable to be dismissed.
I have heard learned counsel for the parties and have perused the record.
From the record it is clear that an agreement was executed in favour of the petitioner and it was renewed year to year up to 1992. On the basis of the government order of 1992, the Screening Committee was constituted and they have scrutinized the working of the various fair price shop holders. The Screening Committee has included the name of the petitioner. As the licenses were not renewed of the various fair price shop holders, the various persons have approached the Court for the purpose of renewal of agreement. Ultimately, the writ petition was dismissed and the finality has also been attached to the Supreme Court but the Apex Court has given a liberty to approach the appellate authority. But in the meantime on the basis of the government order the one time settlement was executed between the parties and the petitioner was granted permission for running the fair price shop. The respondent is not able to show before this Court that after execution of the agreement dated 22.5.1993, in favour of the petitioner there is any violation of any clause of agreement executed between the parties. There is nothing on record to show that there was any complaint against the petitioner regarding his performance. Therefore, the question for consideration is whether on the basis of the report of the Screening Committee of 1992, the agreement of the petitioner can be cancelled in the year 1998. The petitioner had taken a specific plea in the grounds of appeal but from the perusal of the order passed by the Commissioner, exercising the appellate power, has not been considered the said aspect of the matter "whether agreement subsequent to the report of the Screening Committee executed between the parties and the performance on the basis of the aforesaid agreement can be taken into consideration by the authority while cancelling the agreement of the petitioner unless and until it is established that the petitioner has violated any terms of the agreement after the execution of the agreement between the parties dated 25.2.1993." The respondent No.1 has not considered though the same was pleaded by the petitioner in the grounds of appeal. Therefore, in my opinion, the order passed by the respondent No.1 dated 31.1.2001 cannot be sustained and is liable to be quashed and the matter needs reconsideration by the appellate authority.
In view of the aforesaid fact, the writ petition is allowed. The order dated 31.1.2001 is hereby quashed and the matter is remitted back to the respondent No.1 for decision as a fresh on the basis of the observations made above that whether the agreement of the petitioner can be cancelled on the basis of the report of the Screening Committee in spite of the fact that the said agreement was not in existence at the time when the Screening Committee has given a report. The respondent No.1 is directed to pass appropriate detailed and reasoned order according to law after affording full opportunity to the petitioner preferably within a period of three months from the date of production of the certified copy of this order.
With these observations the writ petition is disposed of. There shall be no order as to costs.
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