BRIJ MOHAN Vs. STATE OF U P

JUDGEMENT

(1.) PETITIONER is a fair price shop agent of the shop of village Khanpur Phaphoond, Tehsil & District Auraiya. His agency was terminated under an order of the Sub Divisional Magistrate dated 30.06.2008 (wrongly mentioned as 24.06.2008 in the order of the Appellate Authority). Feeling aggrieved by the order of the Sub Divisional Magistrate, the petitioner preferred an Appeal under Section 28 (3) of the Government Order applicable. While his appeal was pending the petitioner is stated to have made a representation before the Sub Divisional Magistrate for reconsideration of the order of cancellation. The Sub Divisional Magistrate by means of an order dated 21.07.2008 recalled his order of cancellation dated 30.06.2008. It appears that the Additional Commissioner by means of an order dated 30.07.2008 cancelled the order dated 21.07.2008 and maintained the order of cancellation of the fair price shop as per order of the Sub Divisional Magistrate passed dated 24.06.2008. PETITIONER filed Civil Misc. Writ Petition No. 56035 of 2008 before this Court challenging the order dated 30.07.2008 on the ground that the order dated 30.07.2008 it was out side the scope of the Appeal filed by the writ petitioner. A Division Bench of this Court after examining the records came to a conclusion that the order passed on 30.07.2008 passed by the appellate authority did not warrant any interference. However it was provided that the Commissioner should have also examined the merits of the order dated 21.07.2008 which was challenged by way of Appeal. Therefore, the Division Bench required the Commissioner to consider the appeal filed by the writ petitioner on merits, afresh. In compliance with the order of this Court, referred to above, the Commissioner has decided the Appeal filed by the writ petitioner vide order dated 20.01.2009 and has held that the order of cancellation did not warrant any interference. The order of the Sub Divisional Magistrate dated 30.06.2008 and that of the Commissioner dated 28.01.2009 have been challenged before this Court by means of the present writ petition. Before averting to the merits of the order made, this Court may record that the order of the Sub Divisional Magistrate dated 21.07.2008 was an order passed without authority of law inasmuch as once an Appeal has been filed against the earlier order of cancellation dated 30.06.2008, no representation against the said order of cancellation was maintainable nor the Sub Divisional Magistrate could have a fresh enquiry for setting aside the cancellation order. Therefore, the order dated 21.07.2008 is being ignored by this Court. So far as the order of the Commissioner dated 30.06.2008 is concerned which has been passed in compliance to the order of the Division Bench of this Court, referred to above, it is worthwhile to note that the Commissioner in the impugned has recorded that although the petitioner had specifically stated in reply to the allegations made qua non supply of essential commodities to the ration card holders, that such ration card holders had not visited his shop for obtaining essential commodities and the quantity of essential commodities qua the said ration card holders is still lying in stock. The Commissioner has dis- believed the explanation so furnished on the ground that the petitioner has not produced the stock/sale register. Counsel for the petitioner questioned the said finding recorded by the Commissioner with reference to the memo of appeal filed before the Commissioner, copy whereof has been annexed as Annexure 9 to the writ petition. With reference to paragraph 2 of the said memo of appeal it is stated that the petitioner had specifically stated that the relevant register had been filed in support of his explanation that the relevant stock are still available with the writ petitioner qua the complainants. It is, therefore, submitted that the order of the Commissioner which fails to take note of the said challenge is illegal. Despite time being granted no counter affidavit has been filed and, therefore, the allegation made in the writ petition are taken to be correct. From the memo of appeal been filed against the order dated 30.06.2008 it is apparently clear that the petitioner had not only stated that the essential commodities were not lifted from his shop by the complainants, he had also asserted that the relevant quantity of the essential commodities is still available in stocks qua the complainants. The plea so raised was supported with the help of stock register/sale register which were also produced. The Commissioner has recorded that the explanation so furnished cannot be accepted as the stock register/sale register had not been produced. The Commissioner has failed to appreciate that the writ petitioner had stated that the stock register/sale register was being filed and shall be produced along with memo of appeal. I am of the considered opinion that the appellate power of the Commissioner being wide enough to include examination of factual issues qua sale register/stock register being available on records. He was under obligation in the facts of the case to consider the factual pleas raised by the petitioner. The Commissioner has failed to exercise his jurisdiction to that extent while confirming the order of the Sub Divisional Magistrate. In such circumstances the order passed by the Commissioner is legally not sustainable and is hereby quashed. The appeal is restored to its original number. Let the Commissioner take a fresh decision thereon, in light of the observations made, preferably within three months from the date a certified copy of this order is filed before him. Till then status quo as of date in respect of the shop in question shall be maintained and the same shall abide by the final orders to be passed by the Commissioner, as indicated above. Writ petition is allowed subject to the observations made herein above.