Ram Niwas vs State of U.P. and Others

Hon''ble Manoj Misra, J.—This case was called out in the revised list. Sri Amarjeet Singh, Advocate, counsel for the petitioner opposed the illness slip sent by Sri Ali Hasan, learned counsel for the respondent, citing the order passed on 16.12.2011. Sri Amarjeet Singh, learned counsel for the petitioner stated that Sri Ali Hasan has filed his Vakalatnama on behalf of Sanjay Rana who is not a party, but has filed an application for impleadment as party respondent to the writ petition. He submits that on the application for impleadment, on 22.7.2010 this Court had directed Sri Sanjay Rana to file the resolution of Gram Sabha authorizing him to contest the writ petition and for being impleaded as respondent. Sri Amarjeet Singh further submitted that in-spite of the order dated 22.7.2010 no resolution of the Gram Sabha, as directed by the order dated 27.7.2010, has been produced. He drew my attention to the order dated 16.12.2011 which reads as under:-

This court vide its order dated 22.7.2010 directed the learned counsel appearing for one Sanjay Rana, who claimed himself as Gram Pradhan of the village concerned to bring on record the resolution of the Gram Sabha authorizing him to contest the present writ petition. Today when the case was called out a request has been made on behalf of Sri Manish Kumar Singh holding brief of Sri Ali Hasan, who is now stated to be appearing for Sanjay Rana, to adjourn the proceeding of the case. No doubt the case is being adjourned also for the reason that the complete record of the learned Standing Counsel is not available with him but it is made clear that on the next date if the order dated 22.7.2010 is not complied with by the learned counsel appearing for Sanjay Rana the case will proceed on merits without giving any right of participation to Sanjay Rana in these proceedings. List in the next cause list.

In view of the order dated 16.12.2011, the illness slip filed by Sri Ali Hasan, Advocate is not entertained.

I have heard counsel for the petitioner and learned Standing Counsel for the respondents and have also perused the records. The petitioner, by the present writ petition, has challenged the order dated 13.01.006 passed by Sub-Divisonal Magistrate, Baghpat, as also the Appellate order dated 19.5.2006 passed by the Assistant Commissioner( Food) Meerut Division, Meerut whereby the appeal of the petitioner against the order of cancellation of his fair price shop agreement was rejected.

The contention of the counsel for the petitioner is that the Sub- Divisional Magistrate, Baghpat had initiated proceedings for cancellation of the fair price shop agreement on as many as seven charges. The charge No.1 was that on inspection the shop was found to be closed. The charges No.2 and 3 were that the stock board/ rate board was not displayed in accordance with agreement. The charge No.4 was that certain APL card holders have complained that their quota card was being retained by the petitioner. Therefore, they had difficulty in lifting their quota. The Charge No.5 was with respect to complaint by two Annapurna card holders that wrong entries were made in their card indicating that they had lifted their quota. The charge No.6 was that although the petitioner had lifted the quota for supplying the Mid-Day Meal in the village, but the Gram Pradhan had complained that instead of supplying the ration, the petitioner had offered money to him. The last charge, being the charge No.7, was that the petitioner had not supplied full quota of kerosene to some of the APL card holders.

The counsel for the petitioner submits that a detailed reply was submitted by the petitioner to the charges leveled against him. In his reply he had denied that the Rate Board/Stock Board was not displayed out side the shop. He had denied the allegations that scheduled commodities were not supplied to the card holders. He had, however, accepted that the shop was closed on 18.12.2005, but that was on account of emergency. With regard to the charge No.6, the petitioner had stated that the Gram Pradhan was not lifting the quota of the Mid-Day Meal Scheme, and wanted money in lieu thereof. The petitioner, in his reply, had stated that a complaint was made by him against the Gram Pradhan on 15.9.2005 and 15.12.2005 wherein the petitioner had clearly stated that the Pradhan was not lifting the Mid-Day Meal quota.

The petitioner had enclosed the complaint letters along with his reply, and copy of these letters have been enclosed as Annexures- 3,4 and 5 to the writ petition.

The Sub-Divisional Magistrate, Baghpat by his order dated 13.1.2006, cancelled the fair price shop agreement of the petitioner thereby holding that all the charges levelled against the petitioner stood proved.

I have perused the order dated 13.1.2006 passed by Sub- Divisional Magistrate, Baghpat. From the order, it appears that the Sub-Divisional Magistrate, Baghpat has not at all considered the reply with respect to the charge No.6. The Sub-Divisional Magistrate, Baghpat has not taken into consideration the complaint made by the petitioner against the conduct of the Gram Pradhan in not lifting the quota of the Mid-Day Meal. Even the reply, with respect to other charges also, has not been properly discussed.

The counsel for the petitioner has submitted that since it is not clear from the order of cancellation that which ground prevailed upon the Sub-Divisional Magistrate, Baghpat to cancel the fair price shop agreement of the petitioner, the entire order of cancellation would be vitiated on account of non-consideration of the reply submitted by the petitioner with respect to charge No.6.

The counsel for the petitioner has further submitted that even the Appellate Authority has not taken into consideration the reply submitted by the petitioner.

There is some force in the submission of the petitioner. It is not clear from the order of the cancellation as to which charge had prevailed upon the mind of the Sub-Divisional Magistrate, Baghpat to cancel the fair price shop agreement of the petitioner. From the nature of charges levelled against the petitioner I find charge No.6 to be most serious. Rest of the charges may justify lesser penalty than cancellation of the fair price shop agreement. Although the question of quantum of penalty is the sole discretion of the authority concerned, but considering that relevant material with respect to charge No.6 has not at all been considered, and that the reply with respect to the other charges has also been causally dealt with, I find it appropriate to remand the matter back to the Sub-Divisional Magistrate for passing fresh order after taking into consideration, the reply of the petitioner. In view of the aforesaid, the writ petition succeeds and is allowed. The order of cancellation dated 13.1.2006 (Annexure-7) and the Appellate Order dated 19.5.2006 (Annexure-8) are hereby quashed and set aside. The opposite party No 3, Sub-Divisional Magistrate, Baghpat, is directed to pass a fresh order in accordance with law after taking into consideration the explanation submitted by the petitioner. Since I am not setting aside the order on merit, the parties are directed to maintain status quo, as on date, with regard to distribution of the Essential Commodities to the card holders attached to the shop of the petitioner, and no fresh agreement for the fair price shop in question shall be granted till fresh order is passed by the Sub- Divisional Magistrate, Baghpat, in the light of the observation made herein above. The aforesaid exercise shall be completed by the Sub-Divisional Magistrate, Baghpat within a period of three months from the date of production of a certified copy of this order. There shall be no order as to costs.