# Sompal v. Sub-Divisional Magistrate Tehsi Rampur Maniharan, District Saharanpur

- **Citation:** (2019) 4 ILRA 1203
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-26
- **Case number:** Writ-C No. 28035 of 2019
- **Bench:** Siddhartha Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sompal-v-sub-divisional-magistrate-tehsi-rampur-maniharan-district-saharanpur-44903
- **Pages:** 3

## Headnote

A. Civil Law - Essential Commodities Act,
1955 - Fair price shop - Cancellation of
licence by Sub-Divisional Officer - the
charges which the petitioner had to reply
to should have been very clear and
should have been enumerated seriatim -
when a delinquent fair price shop dealer
is given a statement of charge then the
charges should be very clear - after the
enquiry what punishment would follow
also should be clearly given out in the
show cause notice. (Para 4)

A definite enquiry ought to have been
undergone whereby a place, date and time
ought to have been fixed for the enquiry - If
the petitioner had failed to appear - the
enquiry officer should have questioned the
complainants - looked into the evidence -
1204 INDIAN LAW REPORTS ALLAHABAD SERIES
should have come to a definite conclusion as
to whether the petitioner was guilty of the
charges. (Para 4)

Held: - It was improper for the Enquiry Officer to
have simply stated that since the delinquent had
not submitted his reply it had to be presumed
that he had accepted his guilt. (Para 4)

Writ Petition allowed. (E-7)

List of cases cited: -

## Text

4 All. Sompal Vs. Sub-Divisional Magistrate Tehsil Rampur Maniharan, Dist. Saharanpur
1203
Divisional Officer in proceedings under
Section 101 of the U.P. Revenue Code,
2006 has not been provided under the
Rules. It has been observed as follows:-

"Moreover,
since
the
rules
namely the U.P. Revenue Code Rules
2016 do not provide the manner in which
the State Government is required to deal
with an application for exchange referred
to it by the Sub Divisional Officer, the
power conferred by the proviso to Section
101(2) cannot be exercised."

38. Further in the operative portion
of the judgement, the following direction
has been issued:-

"Learned Standing Counsel is
directed to ensure that a copy of this order
is forwarded to the competent authorities
in the State Government, advising them to
desist
from
exercising
the
power
conferred by the proviso to Section 101
(2) of the U.P. Revenue Code, 2006 till
such time the U.P. Revenue Code Rules,
2016 are suitably modified/amended,
prescribing the conditions and procedure
for exercise of the said power."

39. Under the circumstances, Writ
Petition No. 31241 of 2019 is disposed of
in the terms of the directions issued in
Writ C No. 26070 of 2019, wherein the
State Government has been directed to
desist
from
exercising
the
power
conferred by the proviso to Section 101(2)
of the U.P. Revenue Code, 2006, till such
time, the U.P. Revenue Code Rules, 2016
are
suitably
modified/amended,
prescribing the conditions and procedure
for exercise of power conferred by
proviso to Section 101(2).

40. Writ Petition No.27953 of 2018
is dismissed while Writ Petition no.27278
of 2019, stands disposed of directing the
respondents to execute the orders which
stand affirmed due to dismissal of Writ
Petition No.27953 of 2018 within four
weeks of a certified copy of this order
being filed before them.
----------
(2019)12 ILR A1203

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.09.2019

BEFORE
THE HON'BLE SIDDHARTHA VARMA, J.

Writ-C No. 28035 of 2019

Sompal ...Petitioner
Versus
Sub-Divisional Magistrate Tehsi Rampur
Maniharan, District Saharanpur
 ...Respondents

Counsel for the Petitioner:
Sri Suresh Chandra Pandey

Counsel for the Respondents:
C.S.C., Sri Rajesh Yadav, Sri Ram Babu
Tiwari

A. Civil Law - Essential Commodities Act,
1955 - Fair price shop - Cancellation of
licence by Sub-Divisional Officer - the
charges which the petitioner had to reply
to should have been very clear and
should have been enumerated seriatim -
when a delinquent fair price shop dealer
is given a statement of charge then the
charges should be very clear - after the
enquiry what punishment would follow
also should be clearly given out in the
show cause notice. (Para 4)

A definite enquiry ought to have been
undergone whereby a place, date and time
ought to have been fixed for the enquiry - If
the petitioner had failed to appear - the
enquiry officer should have questioned the
complainants - looked into the evidence -
1204 INDIAN LAW REPORTS ALLAHABAD SERIES
should have come to a definite conclusion as
to whether the petitioner was guilty of the
charges. (Para 4)

Held: - It was improper for the Enquiry Officer to
have simply stated that since the delinquent had
not submitted his reply it had to be presumed
that he had accepted his guilt. (Para 4)

Writ Petition allowed. (E-7)

List of cases cited: -

1. Aajad Kumar vs. State of U.P. and 2 Others,
2018(126) ALR 721

2. Puran Singh vs. State of U.P. and others,
(2010 (3) ADJ 659 (FB)

(Delivered by Hon'ble Siddhartha Varma, J.)

1. The petitioner's fair price shop
was suspended on 12.05.2011. Thereafter,
the suspension order was recalled on
10.06.2011. Again when the petitioner's
fair price shop was suspended on
24.06.2011 and cancelled, thereafter, on
04.07.2011, the petitioner filed a writ
petition being a writ petition No. 35438 of
2011. Initially an interim order was
granted
on
07.07.2011,
which
was
subsequently vacated on 29.01.2014 and
the petitioner was relegated for availing
the
remedy
of Appeal. When
the
petitioner's Appeal was dismissed, he filed
a writ petition being writ petition No.
62538 of 2014. This writ petition was
allowed on 27.02.2019 and the Court after
quashing the orders dated 04.07.2011 and
24.09.2014 restored the petitioner's shop.
Thereafter, it appears in pursuance of the
High Court's order on 30.03.2019 the
petitioner was given back his shop. On
15.06.2019, a show cause notice was
again issued to the petitioner stating that
on 13.06.2019 a team which had been
constituted as per the order dated
27.02.2019 had held a meeting in which
the Gram Pradhan, the complainant Shri
Pal himself had met along with other
villagers and in the open meeting as many
as 96 complaints were found and were
brought
on
record.
The
petitioner,
thereafter, was required to give his
explanation to the show cause notice
dated 15.06.2019. When, however, on
18.07.2019 the Sub-Divisional Officer,
Rampur Maniharan, District- Saharanpur
cancelled the licence of the petitioner, the
instant writ petition was filed. The
petitioner in effect made the following
three submissions:-

i) Show cause notice if is
perused shows that 96 complaints were
made against the petitioner. What exactly
were the complaints was not enumerated
in the show cause notice given to the
petitioner.
Learned
counsel
for
the
petitioner states that as per the Govt.
Order dated 29.07.2004 when the show
cause notice was issued the punishment
also which would have followed the
enquiry should have been given out. Since
this show cause notice was extremely
vague and it only enumerated the
complaints without any details the show
cause notice was not a show cause notice
in the eyes of law.

ii) Learned counsel for the
petitioner submits that if the order dated
18.07.2019 is perused it becomes clear
that when the petitioner was the given
show cause notice a reply was expected
from him. Various opportunities were
given to the petitioner on 17.06.2019,
01.07.2019 and on 05.07.2019 and when
the petitioner did not submit any reply it
was presumed that he had accepted the
charges and the licence was cancelled.
Learned
counsel
relying
upon
a
judgement reported in 2018(126) ALR
4 All. Sompal Vs. Sub-Divisional Magistrate Tehsil Rampur Maniharan, Dist. Saharanpur
1205
721 : (Aajad Kumar vs. State of U.P. and 2
Others), submitted that if the Enquiry Officer
desired to punish the petitioner, he should
have conducted a full fledged enquiry on his
own. He should have called the complainants
and should have got the complaints enquired
into. Only after being satisfied that the
complaints were correct he should have
passed the order of punishment. Learned
counsel for the petitioner submits that simply
because the petitioner had not filed his reply it
could not be concluded that he was guilty.

iii) Learned counsel for the
petitioner further submits that though in
the order it has been stated that no reply
was filed, he had infact made an effort on
06.07.2019 to submit the reply. This he
states in the Supplementary Affidavit,
which he has filed today.

2. Learned Standing Counsel, however,
in reply submits that when the petitioner was
not submitting any reply then there was no
other option left with the respondent/State to
conclude that the petitioner had accepted his
guilty. Learned Standing counsel further
submits that a show cause notice did not
require an enumeration of charges. The
petitioner when was informed of his mistakes,
he should have gleaned out the charges from
the statement of facts which were supplied to
him. There was no requirement to give a
definite statement of charge.

3. Learned counsel appearing for the
subsequent allotee, the Caveator adopted
the arguments of the learned Standing
counsel.

4. Having heard the learned counsel
for the petitioner, learned Standing
Counsel and the Counsel for the Caveator
this Court is of the definite view, that the
charges which the petitioner had to reply
to should have been very clear and should have
been enumerated seriatim. This is also what has
been held in a judgement and order of this
Court dated 19.09.2019 (Manoj Kumar Yadav
vs. State of U.P. and 4 others). Even if the Govt.
Order dated 29.07.2004 is perused along with
the Full Bench decision of Puran Singh vs.
State of U.P. and others reported in (2010 (3)
ADJ 659 (FB), it becomes clear that when a
delinquent fair price shop dealer is given a
statement of charge then the charges should be
very clear. Also, after the enquiry what
punishment would follow also should be
clearly given out in the show cause notice.
Further the Court is of the view that as per the
Govt. Order dated 29.07.2004 and 16.10.2014
and as per the law as has been laid down in
2018(126) ALR 721 : (Aajad Kumar vs. State
of U.P. and 2 Others) a definite enquiry ought
to have been undergone whereby a place, date
and time ought to have been fixed for the
enquiry. If the petitioner had failed to appear
then the enquiry officer should have questioned
the complainants, looked into the evidence and,
thereafter, should have come to a definite
conclusion as to whether the petitioner was
guilty of the charges. It was improper for the
Enquiry Officer to have simply stated that since
the delinquent had not submitted his reply it
had to be presumed that he had accepted his
guilt.

5. With these observations, the order
dated 18.07.2019 is quashed and the writ
petition is allowed.
----------
(2019)12 ILR A1205
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.11.2019

BEFORE
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ-C No. 29840 of 2019