# Smt. Raj Kumari Singh v. State Of U.P. And Others

- **Citation:** (2011) 1 ILRA 380
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-03-03
- **Case number:** Civil Misc. Writ Petition No. 1766 of 2011
- **Bench:** F.I.Rebello, C.J. Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-raj-kumari-singh-v-state-of-u-p-and-others-41779
- **Pages:** 3

## Headnote

Sri Purendu Kumar Singh
Sri Ajai Shankar Pathak
Sri Umesh Narain Sharma

Respondent Counsel:
C.S.C.

Constitution
of
India-Article
226cancellation of Fair Price Shop Licenseon ground of pendency of criminal
case-earlier
it
was
suspendedsubsequently on ground of hardship of
consumer during period of attachmentcancellation order passed-inspite of
time granted no counter affidavit filedin absence of provisons of suspension
or cancellation of on pendency of
criminal case-order without authority
of law.
1 All] Smt. Raj Kumari Singh V.State Of U.P. And Others
381
Held: Para 8

Even otherwise we may point out that a
reading of the order dated 10.8.2010
discloses total non application of mind.
The said order purports to cancel the
license merely on the ground of lodging
of an F.I.R. and that suspension is going
on for a long time thereby causing
inconvenience in distribution of essential
commodities to the card holders. The
said reasons cannot be justified in law to
cancel the dealership.
Case law discussed:
Jagdish Narain Mishra vs. State of U.P. (Civil
Misc. Writ Petition No. 28051 of 2008)

## Text

380 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
hampered on account of his absence.
(See: S.V. Muzumdar & Ors. Vs. Gujarat
State Fertilizer Co. Ltd. & Anr.7) .
Therefore, the satisfaction whether or not
an accused deserves to be exempted from
personal attendance has to be of the
Magistrate, who is the master of the court
in so far as the progress of the trial is
concerned and none else.

.........

10. We respectfully concur with
the above guidelines and while reaffirming the same, we would add that
the order of the Magistrate should be
such
which
does
not
result
in
unnecessary harassment to the accused
and at the same time does not cause
any prejudice to the complainant. The
Court must ensure that the exemption
from personal appearance granted to
an accused is not abused to delay the
trial."

7. Therefore, the Magistrate while
considering an application under section
205 of the Code, has to see whether or
not any useful purpose would be served
by requiring the personal attendance of
the accused in the court. He is further
required to see whether or not the
progress of the trial is likely to be
hampered on account of absence of the
accused. As held in the case of Bhaskar
Industries (supra), the discretion under
section 205 of the Code should be
exercised in a judicious manner and the
personal presence of the accused should
be required only when the trial cannot
proceed further without the presence of
the accused. If the trial can be held
conveniently in absence of the accused,
it would be just and expedient to
exercise the discretion in favour of the
accused and dispense with his personal
attendance in the court.

8. In view of the aforesaid, it will
be open to the applicants to move an
application under section 205 of the
Code for dispensing with their personal
attendance in the court. If any such
application is moved, the same may be
considered
and
disposed
of
in
accordance with the observations made
herein before.

9. The petition is, therefore,
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHAABD 0.3.03.2011

BEFORE
THE HON'BLE F.I.REBELLO,C.J.
THE HON'BLE VINEET SARAN,J.

Civil Misc. Writ Petition No. 1766 of 2011

Smt. Raj Kumari Singh
 ...Petitioner
Versus
State Of U.P. And Others ...Respondent

Counsel for the Petitioner:
Sri Purendu Kumar Singh
Sri Ajai Shankar Pathak
Sri Umesh Narain Sharma

Respondent Counsel:
C.S.C.

Constitution
of
India-Article
226cancellation of Fair Price Shop Licenseon ground of pendency of criminal
case-earlier
it
was
suspendedsubsequently on ground of hardship of
consumer during period of attachmentcancellation order passed-inspite of
time granted no counter affidavit filedin absence of provisons of suspension
or cancellation of on pendency of
criminal case-order without authority
of law.
1 All] Smt. Raj Kumari Singh V.State Of U.P. And Others
381
Held: Para 8

Even otherwise we may point out that a
reading of the order dated 10.8.2010
discloses total non application of mind.
The said order purports to cancel the
license merely on the ground of lodging
of an F.I.R. and that suspension is going
on for a long time thereby causing
inconvenience in distribution of essential
commodities to the card holders. The
said reasons cannot be justified in law to
cancel the dealership.
Case law discussed:
Jagdish Narain Mishra vs. State of U.P. (Civil
Misc. Writ Petition No. 28051 of 2008)

(Delivered by Hon'ble F.I. Rebello,C.J.)

1. The petitioner is a fair price shop
dealer. An FIR had been lodged under
Section 3/7 of the Essential Commodities
Act on 1.9.2009 against the petitioner
whereby her fair price shop dealership
was placed under suspension on 3.9.2009.
On 10.8.2010, the dealership of the
petitioner has been cancelled by the SubDivisional Officer on the ground of
lodging of FIR under Section 3/7 of the
Essential Commodities Act against the
petitioner. It has been stated in the said
order that since the shop of the petitioner
is continuing under suspension for about a
year and the card holders attached to the
shop of the petitioner are facing difficulty,
the dealership is being cancelled. The
same ground has been reiterated in the
order dated 20.12.2010 for cancelling the
dealership of the petitioner. Challenging
the said orders dated 10.8.2010 and
20.12.2010, this writ petition has been
filed.

2. We have heard Sri Ajay Shankar
Pathak, learned counsel for the petitioner
as well as learned Standing Counsel
appearing for the respondents and have
perused the record.

3. Earlier on 13.1.2011 time was
granted to the learned Standing Counsel
to file counter affidavit and the matter
was adjourned for 17.2.2011. However,
no counter affidavit was filed and the
matter
was
again
adjourned
to
1.3.2011and it was made clear that no
further time would be granted to file
counter affidavit. Till date no counter has
been filed and today again a request has
been made on behalf of the respondents
for adjournment, which is refused. We
thus proceed to dispose of this writ
petition on the averments as they now
stand.

4. Ordinarily we would not have
entertained this writ petition as an appeal
is available in a case of cancellation of
licence. However, we find over here that
the Judgment of this Court dated
30.10.2009 in Jagdish Narain Mishra vs.
State of U.P. (Civil Misc. Writ Petition
No. 28051 of 2008) has not been followed
wherein the learned Judge observed as
under:-

"Despite
advancing
lengthy
arguments, learned standing counsel has
failed to bring to the notice of the Court
any provision either under the Essential
Commodities Distribution Order, 2004 or
under any other Government Order
issued either under the 2004 order or
1990 order empowering the Licensing
Authority to cancel a fair price shop
agreement merely on account of a dealer
being involved in a criminal case. Hence
the
cancellation
of
the
petitioner's
agreement
on
the
ground
of
his
involvement in aforesaid criminal case
382 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
under the Essential Commodities Act is
also unsustainable."

5. Nothing has been brought to our
attention that the said judgment has been
overruled. Even otherwise, we are of the
opinion that the said conclusion cannot be
faulted for the reason that mere filing of a
F.I.R. cannot result in holding a fair price
shop owner guilty of the offences
charged. If there be a conviction, then it is
possible to proceed, based on the
conviction and not otherwise. In case if
the F.I.R. is lodged, it is still open to the
respondents
to
proceed
by
leading
independent evidence and statements of
the persons recorded.

6. In the instant case that has not
been
done.
It
is
not
possible to
countenance
a
situation
where
a
judgment, which is binding on the
authority, is not being followed and the
parties are made to seek a remedy which
ordinarily they need not have to resort to
if the law laid down by this Court was
followed by the respondents.

7. Considering what we have set out
earlier and the Judgment of this Court in
Jagdish Narain Mishra (supra), which we
approve, the cancellation of the licence of
the petitioner is without authority of law.

8. Even otherwise we may point out
that a reading of the order dated
10.8.2010 discloses total non application
of mind. The said order purports to cancel
the license merely on the ground of
lodging of an F.I.R. and that suspension is
going on for a long time thereby causing
inconvenience in distribution of essential
commodities to the card holders. The said
reasons cannot be justified in law to
cancel the dealership.

9. Consequently the orders dated
10.8.2010 and 20.12.2010 are set aside.
The respondents are directed to resume
the supply of the food grains to the
petitioner if there be no other contrary
order. However, it shall be open to the
respondents to hold an enquiry and
proceed according to law.

10. With the aforesaid observation,
this writ petition stands disposed of.
---------