Allowed

Ramayan Prasad v. State of U.P. and 3 Others

Allahabad HC3 May 2023WRIC/1727/2016

Case brief

AI extract

What is this about?

Court allowed unopposed impleadment application rejection, dismissing it as the applicant lacked independent rights. Crucially, allowed the main writ petition quashing the shop license cancellation, directing restoration of license due to procedural violations in enquiry.

What did the court decide?

Impugned orders quashed, license restored, and respondent directed to hand over charge from subsequent allottee to petitioner within two months.

Ramayan Prasad Vs State of U.P. and 3 Others — Service and Employment | Allahabad HC (2023)

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Court No. - 52

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Case :- WRIT - C No. - 1727 of 2016

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Petitioner :- Ramayan Prasad Respondent :- State Of U.P. And 3 Others

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Counsel for Petitioner :- Inteshwar Nath Singh,Ajay Yadav,Girish Kumar Singh

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Counsel for Respondent :- C.S.C.,Tariq Maqbool Khan,Vishwa Nath Pandey

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Hon'ble Kshitij Shailendra,J.

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Civil Misc. Impleadment Application No. 84141 of 2017

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Heard learned counsel for the applicant seeking impleadment, learned counsel for the petitioner as well as learned Standing Counsel.

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By means of the present application, impleadment of Vijay Kumar Singh S/o late Harihar, resident of village Mainpur, Block Kasaya, Tehsil Kasaya, District - Kushi Nagar has been sought.

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This petition arises out of orders whereby the fair price shop license of the petitioner was cancelled and the appeal was dismissed.

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Learned counsel for the applicant submits that he is a subsequent allottee and therefore he is a necessary party to the proceedings.

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I have perused the order dated 24.09.2016 annexed alongwith impleadment application, whereby Vijay Kumar was permitted to distribute essential commodities. The said order clearly mentions that such an appointment would be subject to order passed by competent Court.

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In the case of Poonam vs. State of U.P. and Others, 2016 (7)

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ADJ 530 (SC) the Hon'ble Supreme Court has clearly held that a subsequent allottee whose appointment is subject to the result of proceedings in relation to the original allottee, is neither necessary nor a proper party and he has no independent right. Although, the aforesaid judgment in the case of Poonam (Supra) has been recently considered by the Supreme Court in the case of Ram Kumar vs. State of U.P. and Anothers, 2022 SCC Online (SC) 1312 and it has been held that a regular appointee of fair price shop dealer is a necessary party however, with regard to those appointees whose rights are dependent upon the litigation concerning the original dealer, are neither necessary nor proper parties, as subsequently explained by this Court in its order dated 15.03.2023 passed in Writ-C No. 3876 of 2023 (Rajesh Kumar vs. State of U.P. and Others) .

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In view of the above discussion, the petitioner has no independent right to participate in the present proceedings.

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Consequently, the impleadment application is rejected.

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Ref : Order on petition

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Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents.

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The petitioner was running a fair price shop. A show cause notice was issued to the petitioner and suspension order was passed on 27.09.2014 titled as "order/chargesheet" wherein reference of certain statements made by certain B.P.L. (Below Poverty Line) cardholders and A.P.L. (Above Poverty Line) cardholders were made and it was observed that irregularities were committed by the petitioner in the distribution of essential commodities. License of the petitioner was suspended alleging that his act is in violation of the Control Order of 2004 and he was

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called upon to submit explanation within a period of 15 days with evidence.

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The petitioner filed a reply dated 24.12.2014 annexing therewith affidavits of A.P.L. (Above Poverty Line) cardholders who had deposed against him. The affidavits were in favour of the petitioner. Apart from the aforesaid, a specific averment was made that only 79 cards of the B.P.L. (Below Poverty Line) category were attached with the petitioner in the concerned Gram Sabha as against which essential commodities for only 56 cardholders used to be received by the petitioner, due to which, at the time of distribution, difficulties were being faced. It was further stated that under the order passed by the District Magistrate, 10 kilogram of wheat was to be mandatorily distributed to the persons belonging to the Mushar category, out of the quota of A.P.L. (Above Poverty Line) cardholders.

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The license of the petitioner was cancelled by the first order impugned on 16.01.2015 against which the petitioner filed an appeal which has been dismissed by order dated 28.10.2015 passed by the Commissioner.

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The submission of the learned counsel for the petitioner is that issuance of a vague suspension order without disclosing the illegalities or irregularities in clear and specific terms and without framing specific charge was contrary to the requirement of law and therefore, the proceedings held subsequently on that basis, are null and void.

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He has relied upon a judgment of this Court dated 19.09.2019 passed in Writ-C No. 4329 of 2019 (Manoj Kumar Yadav vs. State of U.P. and 4 others) in which exactly identical facts were involved. He further submits that there is absolutely no

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consideration of the reply filed by the petitioner although it was referred to in the initial portion of the order impugned and the licensing authority has directly arrived at a conclusion that petitioner has committed irregularities in distribution of essential commodities and his reply is not satisfactory. Further finding has been recorded that petitioner has not produced the copies of ration cards. Another ground has been taken that earlier also in 2013, the petitioner's license was cancelled but, later on, after deposit of Rs. 5,000/- as security, the same was restored with warning but the petitioner has not improved his conduct. The appeal has also been dismissed.

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He further submits that the cancellation order has been passed in violation of the specific directions contained in the Government Order dated 16.10.2014 whereby the State Government has made it mandatory that at the time of examining the complaints made against the fair price shop dealer regarding irregularities, the entries made in ration cards of the cardholders must be verified from the register of the dealer and the concerned persons must be mandatorily cross-examined. He submits that at the time of passing of the cancellation order, the aforesaid Government Order was in force and, therefore, the order impugned is unsustainable.

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Learned counsel for the petitioner has further placed reliance on following judgments/orders of this Court :-

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i. Order dated 15.09.2014 passed in Writ-C No. 56415 of 2012 (Lalita Devi (Smt.) vs. State of U.P. Through Secretary And others)

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ii. Order dated 27.04.2015 passed in Writ-C No. 65415 of 2012 (Lalita Devi (Smt.) vs. State of U.P. Through Secretary And others)

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iii. Order dated 05.03.2022 passed in Writ-C No. 12014 of 2020 (Ganga Ram vs. State of U.P. Thru. Prin. Secy. Food And Civil Supplies and Ors.)

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iv. Order dated 24.11.2021 passed in Misc. Single No. 3209 of 2021 (Ram Gopal vs. State of U.P. Thru. Court Of Jt. Commissioner Food, Lko. & Anr.)

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v. Order dated 06.09.2021 passed in Misc. Single No. 1063 of 2020 (Putti Lal vs. State of U.P. Thru Prin. Secy. Food & Supplies Lunknow & Ors.)

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vi. Order dated 14.03.2022 passed in Writ-C No. 34609 of 2018 (Mohd. Masi Alam Khan vs. State of U.P. Thru. Prin. Secy. Food and Civil Supplies. Deptt And Ors.)

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vii. Order dated 03.02.2022 passed in Writ-C No. 27134 of 2021 (Santosh Kumar vs. State of U.P. Thru. Prin. Secy. Food And Civil Supplies And Ors.)

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viii. Order dated 11.05.2022 passed in Writ-C No. 26084 of 2019 (Smt. Sunita Devi vs. State of U.P. Thru. Prin. Secy. Food And Civil Supplies And Ors.)

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ix. Order dated 18.05.2022 passed in Writ-C No. 5867 of 2021 ( Smt. Shayada Begum vs. State of U.P. Thru. Prin. Secy. Food and Civil Supply And Ors.)

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x. Order dated 13.05.2022 passed in Writ-C No. 5294 of 2018 (Maniram Yadav vs. State of U.P. and 3 Others)

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xi. Order dated 12.08.2021 passed in Writ-C No. 1060 of 2021 (Imtiyaz Ahmad vs. State of U.P. And 4 Others)

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Learned Standing Counsel, on the other hand, has argued that there was sufficient evidence against the petitioner during the course of enquiry that he was not properly distributing the essential commodities to the cardholders and he also did not produce photocopies of the ration cards during the course of the enquiry and, hence, the orders impugned do not require any interference.

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Having heard the learned counsel for the parties, I find that the specific stand taken by the petitioner in his objections dated 24.12.2014 has not been taken into consideration. Further, the guidelines contained in the Government Order dated 16.10.2014 have not been followed. Card holders were not asked to produce

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their original ration cards for the purposes of verification and comparison with the distribution register held by the petitioner nor were they cross-examined. There were affidavits of various cardholders that they had no grievance against the petitioner and that they were fully satisfied with his functioning.

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The aforesaid judgments and orders of this Court regarding holding of comprehensive enquiry and framing specific charges as well as consideration of reply filed by the dealer, fully support the case of the petitioner. Further, this Court in its order dated 19.09.2019 has passed in Writ-C No. 4329 of 2019 (Manoj Kumar Yadav vs. State of U.P. and 4 others) has issued a direction to the State Government to advise its Officers that when they issue show cause notices, they should enumerate the charges properly. Although, the aforesaid order of this Court is subsequent in point of time, once the Government Order dated 16.10.2014, was there when the cancellation order was passed and even otherwise the control orders and other Government Orders also provide for holding full-fledged enquiry and grant of opportunity to the dealer as well as to cross-examine the cardholders and also verifying the entries made in their ration cards on the basis of the records, I find that no such procedure has been followed and the petitioner's fair price shop has been cancelled, contrary to the principles of law laid down in the aforesaid judgments and orders.

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Further, the finding to the effect that the petitioner had not produced photocopies of the ration cards does not appeal to the Court as it was not expected from the petitioner, as the ration cards remain in the custody and possession of the cardholders. Therefore, the petitioner was asked to perform almost an impossible task and to lead an evidence, he could not lead in the facts and circumstances of the case.

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Moreover, it was for the authorities to collect the evidence during the course of the enquiry from the ration cardholders in case they wanted to cancel the license as this Court in the aforesaid judgments, has clearly held that burden of proof to carry home the allegations was on them and merely because the defence taken by the petitioner or the evidence adduced by him were found to be lacking, an automatic conclusion could not be drawn that the charges levelled stood established.

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In view of the above, the orders impugned cannot sustain.

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The writ petition succeeds and is allowed . The impugned orders dated 16.01.2015 and 28.10.2015 respectively passed by Sub-Divisional Officer, Kasia, District - Kushi Nagar and Commissioner Gorakhpur Division Gorakhpur are hereby quashed .

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The fair price shop license of the petitioner is hereby restored.

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Since today, by passing a separate order on the impleadment application filed on behalf of Vijay Kumar, it has been found that he has no independent right to participate in the proceedings as his appointment/arrangement was dependent upon the present lis, it is directed that the respondent no. 3 shall take positive and necessary steps for handing over the charge of the shop in question from Vijay Kumar to the petitioner within a period of two months from the date, certified copy of this order is produced before him. Thereafter, petitioner shall be allowed to run the fair price shop strictly in accordance with law and he is directed to fairly distribute essential commodities to the cardholders by maintaining proper record.

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Order Date :- 3.5.2023 M.S. Ansari

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Digitally signed by :- MOHD SAQIB ANSARI High Court of Judicature at Allahabad

Ramayan Prasad v. State of U.P. and 3 Others

Case brief

What is this about?

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Ramayan Prasad v. State of U.P. and 3 Others

Case brief

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