SHIV KARAN Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the petitioner, learned Standing Counsel and Sri D.P. Singh, Senior Advocate assisted by Sri Surendra Singh who appears on behalf of the newly impleaded respondent. The present writ petition has been filed for challenging the orders dated 4.7.2006 and 18.1.2006 passed by respondent no.2 and 3, Annexures-7 and 4 respectively to the writ petition. The brief facts arising out of the present writ petition are that the petitioner, who is a fair price shop licensee, was allotted the said shop in the month of March 2001. It appears that the Pradhan of the village was having some personal grievance due to the participation in the election, as such on his complaint as well as on the complaint made by one Mahesh Narain Sharma, an inquiry was conducted and the licence of the petitioner was suspended by order dated 3.10.2005 . In the order of suspension a specific allegation was put upon the petitioner that the petitioner has not distributed the food grains under the scheme of Annapurna to one of the Card-holders namely Smt. Durga wife of Mangali after April 2005 and the same allegation was that one Shiv Narain has also not been distributed the food grains and further various allegations regarding non-distribution has also been put upon the petitioner. The petitioner submitted a reply before the respondent no.3 stating therein that as regards Charge no.1, Smt. Durga wife of Mangali has already expired, therefore, the charge levelled against the petitioner is incorrect. Further as regard Charge no.2, it is submitted that it has been made only due to the Partibandi of Sri Mahesh Narain Sharma. Further an explanation has been given that the complainant has got no card in the village and he is living in Bindki. Further other charges have also been denied. Various affidavits of the card holders have also been submitted by the petitioner showing therein that they have not made any complaint against the petitioner. While considering the case of the petitioner, it appears that during pendency of the inquiry and consideration of the licence of the petitioner by the authority concerned one Mahesh Narain Sharma has made another complaint on 23.11.2005 stating therein that about 29 cardholders have not been distributed the food grains including sugar from 1998. Taking into consideration all these facts vide its order dated 18.1.2007, the licence of the petitioner has been cancelled. The appeal filed by the petitioner has also been dismissed. Sri Madan Lal Srivastava, learned counsel for the petitioner submits that the specific reply regarding the charges and distribution of the food grains have been stated in the reply submitted by the petitioner. Further a specific averment has been made that Smt. Durga is not alive and the complainant who has made a compliant is not the resident of the village and he is resident of another village, therefore, he cannot have locus to make such complaint. Further it has been submitted that during the pendency of the complaint various other things have been taken into consideration by the respondent which is apparent from the order impugned, as such the order is liable to be quashed. Further submission has been made by the learned counsel for the petitioner that the order passed by the appellate court is an order without consid4rationofthe relevant facts and without assigning any reason. As such it will be presumed that the order passed by the appellate court is an order passed without application of mind. On the other hand, learned Standing Counsel who has filed a counter affidavit has justified the order passed by the authorities below on the ground that as the various complaints regarding non-distribution of the food grains have been made and it was established beyond doubt that the petitioner has not distributed the food grains properly to the card-holders, therefore, a proceeding for cancellation has been initiated and the order has been passed after full opportunity to the petitioner. The order of the appellate court is an order of affirmation, therefore, it cannot be faulted on the ground that it has not recorded reasons. Therefore, the present writ petition is liable to be dismissed. On the other hand Sri D..P. Singh learned Senior Advocate wanted to justify the order impugned and wanted to argue the matter that being a subsequent allottee, he has a right to oppose the claim of the petitioner. After hearing the learned counsel for the parties, i am of view that subsequent allottee has got no right till the finalisation of the proceeding against the petitioner. The shop in question has been allotted to him only in view of the cancellation of the shop of the petitioner. As soon as the order impugned passed against the petitioner is set aside, the subsequent allottee has got no right to say anything. As regards the validity of the order impugned is concerned, from perusal of the record it clearly appears that charges against the petitioner were regarding non-distribution of the food grains to one Durga wife of Mangali. The petitioner specifically stated in the written reply that Smt. Durga wife of Mangali has already expired , therefore, there is no occasion to distribute the food grains to her. Further Sri Mahesh Narain Sharma who is alleged to be the complainant, is not residing in the said village for about 10 years and he is having personal grievance against the petitioner, as such he has been making various complaints against the petitioner even in previous years. On an inquiry it was found that all the complaints made against the petitioner are frivolous. Further from the order impugned it also appears that one complaint has been entertained by respondent regarding non-distribution of the food grains of about 29 card holders and one of the allegations was that these card-holders have not been distributed food grains from 1998 though from the record it appears that the licence of the petitioner for fair price shop has been given in 2001. There is no discussion in the order regarding the reply submitted by the petitioner. The appellate court has also not dealt with the specific reply regarding death of one of the card-holders as well as regarding the complainant. These factors have not been considered, therefore, in my opinion, the order impugned is not sustainable in the law and is liable to be quashed. The writ petition is allowed. The orders impugned dated 4.7.2006 and 18.1.2006 passed by respondent no.2 and 3, Annexures-7 and 4 respectively to the writ petition are hereby quashed. The effect of the quashing of the orders impugned is that the licence of the petitioner be restored forthwith and the respondents will allocate the food grains and other articles for the purposes of distribution to the card holders as soon as possible. It is however, open to the respondents to take any action against the petitioner in accordance with law, if they think so in the facts and circumstances of the case. No order is passed as to costs.