# Totaram and others v. Asst. Comm. Saharanpur Division & others

- **Citation:** (2011) 3 ILRA 1462
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-12-05
- **Case number:** Civil Misc. Writ Petition No. 35299 of 2005
- **Bench:** Sanjay Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/totaram-and-others-v-asst-comm-saharanpur-division-others-42080
- **Pages:** 5

## Headnote

Constitution
of
India,
Article
226cancellation of supply-fair price dealerchallenged prior cancellation of supply
no opportunity given-mere lodging F.I.R.
Can not be ground for cancellationlicense of petitioner neither suspended
nor canceled-petitioner by producing
forged receipt succeeded to get supplyeven if ready to deposit said amountsupply can not be restored-fraud vitiate
every thing-principle of Natural Justice
can not be evoked who guilty of playing
fraud-moreover can approach before
S.D.O.-who consider the defence and
take
appropriate
decision-petition
disposed of.

Held: Para 25

Therefore,
while
upholding
the
imputation in the impugned order to that
extent it is held that stopping the supply
of
essential
commodities
to
the
petitioner was not an act which was
required to be done only under a power
conferred but because there was fraud
committed by the petitioner hence the
doctrine or principle 'fraud vitiates the
most solemn act' came into play and the
action of the respondents in passing the
impugned order cannot be held to be
against law or guidelines as contained in
the government order.
Case law discussed:
2011 (3) AWC 3180; 2009 All.C.J. 335; 2007
(1) AWC 54; 2001 (1) ALJ 332; 2004 All.C.J.
208

## Text

1462 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

8. In view of the aforesaid
discussion, I allow the writ petition and
set aside the impugned orders dated
7.2.2007
and
23.2.2007
passed
by
respondent nos. 2 and 3 respectively and
respondents are directed to consider the
claim of the petitioner and appoint him on
compassionate ground under the aforesaid
Rules of 1974 provided he is eligible
under the Rules to hold the post. Let this
process be completed within a period of
three months from the date a certified
copy of this order is produced before the
respondents.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.12.2011

BEFORE
THE HON'BLE SANJAY MISRA,J.

Civil Misc. Writ Petition No. 35299 of 2005

Totaram and others
 ...Petitioners
Versus
Asst. Comm. Saharanpur Division &
others

 ...Respondents

Counsel for the Petitioner:
Sri Rajiv Gupta
Sri V.C. Misra
Sri H.B. Singh
Sri Vivek Misra

Counsel for the Respondents:
C.S.C

Constitution
of
India,
Article
226cancellation of supply-fair price dealerchallenged prior cancellation of supply
no opportunity given-mere lodging F.I.R.
Can not be ground for cancellationlicense of petitioner neither suspended
nor canceled-petitioner by producing
forged receipt succeeded to get supplyeven if ready to deposit said amountsupply can not be restored-fraud vitiate
every thing-principle of Natural Justice
can not be evoked who guilty of playing
fraud-moreover can approach before
S.D.O.-who consider the defence and
take
appropriate
decision-petition
disposed of.

Held: Para 25

Therefore,
while
upholding
the
imputation in the impugned order to that
extent it is held that stopping the supply
of
essential
commodities
to
the
petitioner was not an act which was
required to be done only under a power
conferred but because there was fraud
committed by the petitioner hence the
doctrine or principle 'fraud vitiates the
most solemn act' came into play and the
action of the respondents in passing the
impugned order cannot be held to be
against law or guidelines as contained in
the government order.
Case law discussed:
2011 (3) AWC 3180; 2009 All.C.J. 335; 2007
(1) AWC 54; 2001 (1) ALJ 332; 2004 All.C.J.
208

(Delivered by Hon'ble Sanjay Misra,J. )

1. Heard V.C. Misra, learned senior
counsel alongwith Sri Haribansh Singh,
learned counsel for the petitioner and
learned Standing Counsel for the Staterespondents.

2. Counter and rejoinder affidavits
have been exchanged between the parties.

3. This writ petition has been filed
assailing the order dated 08.08.2000
(Annexure No.4 to the writ petition)
passed by the District Supply Officer,
Muzaffar Nagar as also the order dated
12.04.2005 (Annexure No.6 to the writ
petition)
passed
by
the
Assistant
Commissioner
(Food)
on
the
appeal/representation
No.66
of
2005
made by the petitioner.
3 All] Totaram and others V. Assistant Commissioner Saharanpur Division & others
1463

4. Learned counsel for the petitioner
has submitted that under the impugned
order the Respondent No.2 has on the
basis of lodging of an F.I.R. suspended
the supply of essential commodities to the
fair price shop of the petitioner and has
attached the supply with the persons
mentioned in the impugned order dated
08.08.2000. Learned counsel has assailed
the impugned order on the ground that it
has been passed without any show cause
notice and without opportunity of hearing
to the petitioner and secondly on the
ground that mere lodging of an F.I.R.
against the petitioner could not be a
ground to suspend the supply of the
petitioner. His other ground is that in
absence of suspension of the fair price
shop license or cancellation of the fair
price shop license the respondent could
not suspend the supply and keep the
matter pending indefinitely.

5. He has assailed the appellate
order by saying that the appellate
authority has wrongly rejected his appeal
by holding that it has no jurisdiction to
entertain such appeal.

6. Learned counsel for the petitioner
has placed reliance on a Division Bench
decision of this court passed in the case of
"Smt. Raj Kumari Singh Vs. State of
U.P. & others", reported in 2011(3)
AWC 3180 to state that the fair price shop
license cannot be cancelled merely on
filing of an F.I.R. and therefore the
impugned order being without application
of mind requires to be set aside.

7. He has also placed reliance upon
a Division Bench judgment in the case of
"Gulab Chandra Ram Vs. State of U.P.
& others", reported in 2009 All.C.J. 335,
to state that when an order passed
canceling the fair price shop license, is in
violation of principle of natural justice
and the procedure prescribed in the
Government Order dated 29.07.2004 the
same cannot be upheld and is liable to be
set aside.

8. He has further placed reliance on
a Division Bench judgment of this court
in the case of "Shiv Raj Singh Vs. State
of U.P. & others" reported in 2007(1)
AWC 54 to state that when no notice was
given before passing of the suspension
order and the inquiry is not being
completed within one month as required
under
the
Government
Order
the
suspension order automatically ceased
and is deemed to have been revoked.

9. He has also placed reliance on a
Division Bench judgment of this Court
passed in the case of "Naumi Ram Vs.
Deputy
Collector,
Azamgarh
and
others", reported in 2001(1) ALJ 332 to
state that supply of food grains cannot be
stopped by the authority only on the basis
of
mere
allegation
or
complaint,
particularly, when no opportunity of
hearing was provided to the petitioner.

10. He has lastly placed reliance on
a decision of the Supreme Court in the
case of "State of Bihar Vs. Lal Krishna
Advani & others", reported in 2004 All.
C.J. 208 to state that the right to
reputation is right to live and failure to
comply with the principal of natural
justice render the action nonest.

11. Learned Standing Counsel has
justified the impugned order by saying
that neither the license of the petitioner
has been suspended nor cancelled and
only the supply has been stopped for the
allegations made therein. He places
1464 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
reliance on his counter affidavit to state
that during pendency of the investigation
under the F.I.R. the supply has been
suspended and as soon as the Case No.87
of 2002 pending in the Court of Chief
Judicial Magistrate, Ist, Muzaffar Nagar,
is decided, the authority will take a
decision in accordance with law on the
said allegations.

12. Insofar the submission of
learned counsel for the petitioner that the
principle of natural justice has been
violated when no notice has been given to
the petitioner is concerned, the fact of the
case establishes that no notice was given
prior to stopping the supply of the
petitioner. The fact that supply has been
stopped only because of lodging of an
F.I.R. and that his license has not been
suspended nor it has been cancelled is
also borne out from the record. The
respondent has also admitted such fact
and in the counter affidavit it has been
stated that the matter in pursuance of the
F.I.R. is pending before the Chief Judicial
Magistrate, Ist, Muzaffar Nagar and,
therefore, upon conclusion of the said
proceedings necessary orders, if any, will
be passed by the authority.

13. Insofar as the impugned order
dated 08.08.2000 is concerned, the
allegation made therein is that without
depositing the amount in the bank, the
petitioner produced a forged deposit slip
of the bank and picked up the essential
commodities from the godown which is a
forgery and is sufficient to suspend the
supply of the petitioner. To this the
petitioner has referred to Annexure No.5
of the supplementary affidavit which is an
opinion of the DGC (Civil) and has
submitted that the petitioner is ready to
deposit the amount for the supply lifted
by him and he has already deposited Rs.6
lakhs with respect to a part of supply
lifted by him and is ready to deposit the
balance of Rs.36 lakhs.

14. The recitation in the impugned
order indicates that the petitioner has
submitted forged deposit slip of the bank
to
lift
the
supply.
The
petitioner
admittedly lifted the supply on the basis
of forged deposit slip produced by him,
therefore, insofar as his agreeing to
deposit the amount for the lifted essential
commodities is concerned, that is a stand
taken after forgery has been committed
hence he cannot deny that he did commit
forgery by depositing a forged deposit slip
of the bank. Once forgery has been
committed any amount of justification
given for it or trying to say that he will
deposit the amount cannot absolve the
petitioner from the forgery committed by
him.

15. The fair price shop license has
not been cancelled nor it has been
suspended. One of the argument is that
there is no power with the authority to
suspend the supply under the Government
Order or the rules/guidelines applicable
for running a fair price shop. The
submission is that there is power of
suspension or cancellation. Insofar as the
above submission is concerned, there is
no doubt that there is power of suspension
and cancellation of the fair price shop
license which has not been exercised in
the present case but what the authority has
done is that it has suspended the supply of
essential commodities for the reason of
forgery and that an F.I.R. has been lodged
and the matter is pending before the Chief
Judicial Magistrate, Ist, Muzaffar Nagar,
in Case No.87 of 2000. In the counter
affidavit it has been stated that the
3 All] Totaram and others V. Assistant Commissioner Saharanpur Division & others
1465
supplies have been stopped and the
authority will consider the resumption of
supply or proceedings for cancellation or
suspension of the shop in question after
the case before the Chief Judicial
Magistrate, Ist, Muzaffar Nagar has
concluded.

16. The decision in the case of Smt.
Raj Kumari Singh (Supra) related to
cancellation of the fair price shop
dealership merely on filing of an F.I.R. In
the present case the fair price shop of the
petitioner has not been cancelled hence no
benefit can be given to the petitioner.

17. In the case of Gulab Chand Ram
(Supra) the cancellation of license was in
complete violation of the principles of
natural justice. In the case of the
petitioner his license has not been
cancelled hence the question is quite
different.

18. In Shiv Raj Singh (Supra) the
license was suspended without giving any
notice
and
the
time
schedule
for
completing the enquiry was not adhered
to. In the petitioner's case there is no order
of suspension of license nor any enquiry
is being held by the Respondent No.2 as
yet.

19. In Naumi Ram (Supra) a
complaint
was
made
with
certain
allegations
and
supply
of
essential
commodities was stopped. The court held
that mere complaint with allegations is
not sufficient to stop supply particularly
when there is no power to stop supply of
essential commodities.

20. The Supreme Court in the case
of Lal Krishna Advani (Supra) held that
failure to comply with the principles of
natural justice would render the action
non-est. It was dealing with a case under
the Commission of Inquiry Act, 1952.

21. When all these above facts and
law are taken into account then while
exercising jurisdiction under Article 226
of the Constitution of India, the court
cannot ignore where there is allegation of
forgery. Applying the principle of natural
justice in a case of forgery where an
F.I.R. has been lodged would be an
unnatural expansion of the principle of
natural justice for giving benefit to a
person.

22. The Supreme Court in the case
of Jharu Ram Roy Vs. Kainjit Roy and
others, reported in 2010(2) AWC 2003
while dealing with a case under Section
43 of the Transfer of Property Act held
that fraud vitiates all solemn acts. In the
cases of State of Punjab Vs. Jagdish Singh
AIR 1964 SC 521, Champak Lal Vs.
Union of India AIR 1964 SC 1854, State
of Bombay Vs. Sanbhghad AIR 1957 SC
892 and in R. Vishwanath Pillai Vs. State
of Kerala 2004(1) UPLBEC 507 it was
held that if benefit is obtained by
committing fraud then the authorities are
not obliged to comply the principles of
natural justice before cancelling the
advantage obtained by such fraud. In the
cases of U.P. Junior Doctors Action
Committee Vs. Dr. B. Sheetal Nandwari
AIR 1991 SC 909 and in Krishna Yadav
Vs. State of Haryana AIR 1994 SC 2166,
it was held that fraud vitiates everything.

23. Therefore when the petitioner
has played fraud by producing forged
deposit receipt of the bank and taken
supply of essential commodities from the
godown to the extent of nearly Rs.Forty
Two lakhs then all his solemn acts now
1466 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
being canvassed are vitiated due to the
fraud committed by him. He cannot be
permitted to be spared of the fraud
committed by him even if now he
deposits the amount. Once his fraud was
detected the authorities were not obliged
to comply with the principles of natural
justice otherwise it would amount to the
expansion of the principle not to ensure
justice but to protect an action of fraud.
That cannot be a call envisaged in the
concept of the principles of natural
justice.

24. In view of the aforesaid
circumstances, where on the one hand the
petitioner
cannot
be
deprived
of
conducting his business without any
suspension or cancellation of his fair price
shop but he also cannot be permitted to go
scot free after having committed a fraud.

25. Therefore, while upholding the
imputation in the impugned order to that
extent it is held that stopping the supply
of essential commodities to the petitioner
was not an act which was required to be
done only under a power conferred but
because there was fraud committed by the
petitioner hence the doctrine or principle
'fraud vitiates the most solemn act' came
into play and the action of the respondents
in passing the impugned order cannot be
held to be against law or guidelines as
contained in the government order.

26. This writ petition is disposed of
finally by requiring the Sub Divisional
Officer, Muzaffar Nagar (Respondent
No.2) to consider the defence of the
petitioner after giving him an opportunity
and while doing so the Respondent No.2
must also take a decision as to whether
the license of the petitioner requires to be
suspended or cancelled for the aforesaid
reason.

27. The writ petition is finally
disposed of.

28. No order is passed as to costs.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.12.2011

BEFORE
THE HON'BLE SHRI KANT TRIPATHI,J.

Criminal Misc. Application No. 38177 of
2011

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

Counsel for the Petitioner:
Sri Shashi Kant Shukla

Counsel for the Respondents:
Govt. Advocate

Protection of Domestic Violence-ActSection
27-territorial
Jurisdictionincident took place at Gonda-aggrieved
lady residing at Basti-held-choicer of
aggrieved shall prevail-no interference
called for.

Held: Para 5

The court where the respondent resides,
carries on business or is employed has
also jurisdiction. The court within whose
local jurisdiction, the cause of action
wholly
or
partly
arises,
has
also
jurisdiction. It is open to the aggrieved
person to choose any of the said courts
for filing the complaint and she can not
be compelled to file the complaint
according
to
the
choice
of
the
respondents.