# Phool Chand Yadav v. State of U.P. and others

- **Citation:** (2009) 1 ILRA 134
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-01-23
- **Case number:** Civil Misc. Writ Petition No.16579 of 2006
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/phool-chand-yadav-v-state-of-u-p-and-others-41332
- **Pages:** 4

## Headnote

Constitution
of
India-Art.
226Cacellation of fair price shop-based on
report submitted by official concern-in
reply to show cause notice-alongwith
reply the petitioner submitted affidavit
of
BPC
card
holder
having
full
satisfaction with the distribution of
petitioner-Non
consideration
of
the
1 All] Phool Chand Yadav V. State of U.P. and others
135
contents of affidavit-No use of calling
issuing show cause Notice-cancellation
order can not sustain.

Held: Para 9

From the perusal of both the orders i.e.,
the order passed by Sub Divisional
Officer
Azamgarh
cancelling
the
petitioner's agreement to run the fair
price
shop
and
the
order
of
the
Commissioner Azamgarh on petitioner's
appeal, it transpires that neither the
reply of the petitioner to the show cause
notice nor the affidavits filed by the
B.P.L. card holders before the Sub
Divisional Officer Azamgarh containing
this fact that they are being supplied
scheduled commodities on the fixed
price by the Government have been
properly considered and the orders have
been passed on the basis of the report of
task force. In case decision was to be
taken only on the basis of the report of
task force then there was no occasion to
serve with a show cause notice and if the
opportunity was offered then it would
have been a real opportunity. The
opportunity is offered to a person to
have his version on the charge and if the
version of the person has come then it
has to be considered and due weight
should be given to the reply and
thereafter decision should be taken
considering the version of both sides.
Mere referring the filing of affidavits
without discussing its contents while
arriving
at
the
final
conclusion
is
unsustainable in the eye of law. In not
doing so decision making process is
vitiated. It is well settled that a decision
reached without proper-self- direction or
in ignorance of relevant material on
record, detracts from a decision in the
eye of law and is termed as perverse.
Such a decision impugning upon civil
rights is open to judicial review under
Article 226 of the constitution in that the
error committed permeates and vitiates
the decision-making-process itself.
Case law discussed:
(2007) 11 SCC 35, (2006) 8 SCC 33, (2007) 11
SCC 447, 2008 (3) SCC 203

## Text

134 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
3(2) Whoever, not being a member of a
Scheduled Caste or a Scheduled Tribe.-
(i).......................................
(ii).....................................
(iii)....................................
(iv)....................................
(v) commits any offence under the Indian
Penal Code (45 of 1860) punishable with
imprisonment for a term of ten years or
more against a person or property on the
ground that such person is a member of a
Scheduled Caste or a Scheduled Tribe or
such property belongs to such member,
shall be punishable with imprisonment for
life and with fine;

9. As would appear from the
language used by the Legislature in
section 3(2)(5) SC/ST Act, it is clear that
this section does not constitute any
substantive offence and if any person not
being a member of a Scheduled Caste or a
Scheduled Tribe commits any offence
under the Indian Penal Code punishable
with imprisonment for a term of ten years
or more against a person or property on
the ground that such person is a member
of Scheduled Caste or Scheduled Tribe or
such property belongs to such member,
then
enhanced
punishment
of
life
imprisonment would be awarded in such
case, meaning thereby that conviction and
sentence under section 3(2)(5) SC/ST Act
simplicitor is not permissible and in cases
where an offence under the Indian Penal
Code punishable with imprisonment for a
term of ten years or more is committed
against a person or property on the ground
that such person is a member of a
Scheduled Caste or a Scheduled Tribe or
such property belongs to such member,
then in such case the accused will be
convicted and sentenced for the offence
under Indian Penal Code read with
Section
3(2)(5)
SC/ST
Act
with
imprisonment for life and also with fine.
Therefore, in the present case, the
appellants could not be convicted and
sentenced under section 3(2)(5) SC/ST
Act simplicitor.

10. Mistake which has been
committed by the learned Sessions Judge
in present case in convicting and
sentencing the appellants under section
3(2)(5) simplicitor has been noticed by us
in some other cases also.

The Registrar General is directed to
send a copy of this order to Sri Dilip
Singh,
the
then
Addl.
Sessions
Judge/Special
Judge,
SC/ST
Act,
Fatehpur for his future guidance.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.01.2009

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No.16579 of 2006

Phool Chand Yadav

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Sanjay Kumar Srivastava

Counsel for the Respondents:
Sri Anuj Kumar
Sri C.B. Yadav
S.C.

Constitution
of
India-Art.
226Cacellation of fair price shop-based on
report submitted by official concern-in
reply to show cause notice-alongwith
reply the petitioner submitted affidavit
of
BPC
card
holder
having
full
satisfaction with the distribution of
petitioner-Non
consideration
of
the
1 All] Phool Chand Yadav V. State of U.P. and others
135
contents of affidavit-No use of calling
issuing show cause Notice-cancellation
order can not sustain.

Held: Para 9

From the perusal of both the orders i.e.,
the order passed by Sub Divisional
Officer
Azamgarh
cancelling
the
petitioner's agreement to run the fair
price
shop
and
the
order
of
the
Commissioner Azamgarh on petitioner's
appeal, it transpires that neither the
reply of the petitioner to the show cause
notice nor the affidavits filed by the
B.P.L. card holders before the Sub
Divisional Officer Azamgarh containing
this fact that they are being supplied
scheduled commodities on the fixed
price by the Government have been
properly considered and the orders have
been passed on the basis of the report of
task force. In case decision was to be
taken only on the basis of the report of
task force then there was no occasion to
serve with a show cause notice and if the
opportunity was offered then it would
have been a real opportunity. The
opportunity is offered to a person to
have his version on the charge and if the
version of the person has come then it
has to be considered and due weight
should be given to the reply and
thereafter decision should be taken
considering the version of both sides.
Mere referring the filing of affidavits
without discussing its contents while
arriving
at
the
final
conclusion
is
unsustainable in the eye of law. In not
doing so decision making process is
vitiated. It is well settled that a decision
reached without proper-self- direction or
in ignorance of relevant material on
record, detracts from a decision in the
eye of law and is termed as perverse.
Such a decision impugning upon civil
rights is open to judicial review under
Article 226 of the constitution in that the
error committed permeates and vitiates
the decision-making-process itself.
Case law discussed:
(2007) 11 SCC 35, (2006) 8 SCC 33, (2007) 11
SCC 447, 2008 (3) SCC 203
(Delivered by Hon'ble Ran Vijai Singh, J.)

1. This writ petition has been filed
for issuing a writ of certiorari quashing
the orders dated 19.1.2005 and 12.1.2006
passed by the Up-Zila Adhikari, Sadar,
Azamgarh and Commissioner Azamgah
Division Azamgarh (Respondents no. 3
and 2). Vide order dated 19.1.2005, the
respondent no. 3 has cancelled the
agreement to run the fair price shop of the
petitioner and by the subsequent order
dated 12.1.2006 the petitioner's appeal
against the order of cancellation was
dismissed by the respondent no.2.

2. The petitioner happens to be a fair
price shop dealer appointed under an
agreement
executed
between
the
petitioner on the one side and the
collector on the other side. The agreement
of the petitioner was suspended on
08.11.2004 on the ground that the
petitioner has been distributing the
scheduled commodities to the below
poverty line card holders (in short B.P.L.
card holders) on excessive price.

3. The petitioner was served with a
show cause notice. A reply to the show
cause notice was filed by the petitioner on
29.12.2004
stating
therein
that
the
petitioner was forced by the authorities to
make a signature on the blank papers with
respect to the return of excess amount
charged by him from the B.P.L. card
holders. He has also stated in his
objection that the Supply Inspector Sri
Satish
Chandra
Singh
has
been
demanding Rs.1000/- per month as a
bribe and when the petitioner has not paid
the same he became angry and his anger
emerged in the shape of suspension order.
136 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
4. It is also worthwhile to mention
that 18 B.P.L. card holders have filed an
affidavit before the Sub Divisional
Officer Azamgarh stating therein that no
excessive price has been charged by the
fair price shop dealer and distribution of
scheduled commodities have been made
on the price fixed by the Government. In
his submissions the suspension order was
unsustainable in the eye of law.

5. The Sub Divisional Officer
Azamgarh
thereafter
cancelled
the
agreement of the petitioner on 19.1.2005.
From the perusal of the order it transpires
that the Sub Divisional Officer did not
consider the petitioner's objection to the
show cause notice and the affidavits filed
by the B.P.L. card holders and has passed
the cancellation order on the basis that
earlier before task force the petitioner has
made signature on the papers containing
the proof that he has returned the excess
amount charged by him to the B.P.L. card
holders.

6. Aggrieved from this order the
petitioner has filed an appeal before the
Divisional Commissioner, Azamgarh and
the Divisional Commissioner too without
considering
the
relevant
materials
available on record and placing reliance
on the report of the task force has
dismissed the petitioner's appeal.

7. Sri Sanjay Kumar Srivastava,
learned counsel for the petitioner has
submitted before the court that neither the
Sub
Divisional
Officer
nor
the
Commissioner has afforded a reasonable
opportunity of hearing to the petitioner.
He has also submitted that the impugned
orders suffers from non consideration of
the relevant materials i.e., the petitioner's
objection the show cause notice and the
affidavit filed by the B.P.L. card holders.

8. I have heard learned counsel for
the petitioner, learned Standing Counsel
for the State respondents and counsel for
Gaon Sabha.

9. From the perusal of both the
orders i.e., the order passed by Sub
Divisional Officer Azamgarh cancelling
the petitioner's agreement to run the fair
price
shop
and the order of the
Commissioner Azamgarh on petitioner's
appeal, it transpires that neither the reply
of the petitioner to the show cause notice
nor the affidavits filed by the B.P.L. card
holders before the Sub Divisional Officer
Azamgarh containing this fact that they
are being supplied scheduled commodities
on the fixed price by the Government
have been properly considered and the
orders have been passed on the basis of
the report of task force. In case decision
was to be taken only on the basis of the
report of task force then there was no
occasion to serve with a show cause
notice and if the opportunity was offered
then
it
would
have
been
a
real
opportunity. The opportunity is offered to
a person to have his version on the charge
and if the version of the person has come
then it has to be considered and due
weight should be given to the reply and
thereafter decision should be taken
considering the version of both sides.
Mere referring the filing of affidavits
without discussing its contents while
arriving at the final conclusion is
unsustainable in the eye of law. In not
doing so decision making process is
vitiated. It is well settled that a decision
reached without proper-self- direction or
in ignorance of relevant material on
record, detracts from a decision in the eye
1 All] Ram Bahal V. Union of India and others
137
of law and is termed as perverse. Such a
decision impugning upon civil rights is
open to judicial review under Article 226
of the constitution in that the error
committed permeates and vitiates the
decision-making-process itself.

10. Otherwise also I am of the view
that the impugned orders suffers from non
consideration of the relevant materials
available on the record. The Apex Court
in the case of Garrison Engineer
(Utility) v. Narinder Singh (2007) 11
SCC 35 has observed as under:-

Para 6: From a perusal of the orders of
the Labour Court and the High Court, it is
noticed that the factual position has not
been analysed in detail and an abrupt
conclusion
has
been
arrived
at.
Additionally, the legal issue regarding
maintainability of the reference was not
considered. Right from the beginning of
the proceedings before the Labour Court
and in the High Court, the appellant had
taken specific plea that the Act was not
applicable to it and it was not an industry.
Unfortunately, as noted above, neither the
Labour Court nor the High Court dealt
with this issue.

Para 7: Above being the position, we set
aside the orders of the Labour Court and
the High Court and remit the matter to the
Labour Court to decide the objection
raised
by
the
appellant
about
the
maintainability of the proceedings under
the Act, founded on the claim that it is not
an industry. The other factual aspects
shall also be considered on evidence
being led by the parties.

11. In the case of Narinder Singh v.
State of Haryana (2006)8 SCC 33,
Kusheshwar Prasad Singh v. State of
Bihar (2007) 11 SCC 447 and Arun
Kumar v. State of Bihar 2008 (3) SCC
203 same view has been reiterated by the
Apex Court.

12. In view of the settled position of
law about the non consideration of the
relevant material available on record I am
of the opinion that the impugned orders
dated19.01.2005 and 12.01.2006 passed
by respondents no. 2 and 3 respectively
are illegal, arbitrary and deserves to be
quashed. The writ petition succeeds and is
allowed. The impugned order dated
19.1.2005 and 12.01.2006 are hereby
quashed. The matter is remanded back
before
the
Sub
Divisional
Officer,Azamgarh to pass an appropriate
order after considering the relevant
materials available on record particularly
reply of the petitioner to the show cause
notice and the affidavits filed by B.P.L.
card holders containing the facts that the
scheduled
commodities
have
been
distributed to them on the price fixed by
the Government.
Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.11.2008

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No.22139 of 2006

Ram Bahal

...Appellant
Versus
Undion of India & others ...Respondents

Counsel for the Appellant:
Sri R.C.Maurya

Counsel for the Respondents:
Sri Govind Saran
Sri S.S. Srivastava