Rajes Kumar, J. - (1.) AFFIDAVIT filed by the learned Standing Counsel be placed on record.
(2.) HEARD Sri Amarjeet Singh, learned counsel appearing for the petitioner and Sri C.P. Mishra, learned Standing Counsel appearing for the respondents. By means of the present writ petition, petitioner is challenging the order dated 24th February, 2006 passed by the Assistant Commissioner (Food), Meerut Division, Meerut in appeal No. 1 of 2005 filed by the petitioner against the order of the Sub-Divisional Magistrate, Jewar, Gautam Budh Nagar dated 26th September, 2005 by which the agreement of the fair price shop of the petitioner has been cancelled. It appears that on the basis of the complaint, made by some of the villagers on 12.8.2005, show cause notice dated 30.8.2005 has been issued by the Sub-Divisional Magistrate, Jewar alleging four irregularities and asking the petitioner to give reply within three days failing which necessary action would be taken against him. Petitioner filed reply dated 3.9.2005 along with ten affidavits of the villagers and refuted the allegations made in the show cause notice. However, the Sub-Divisional Magistrate has not accepted the explanation of the petitioner, and vide order dated 26th September, 2005 cancelled the agreement of the petitioner. Being, aggrieved by the said order, petitioner filed appeal, which has been dismissed.
(3.) LEARNED counsel for the petitioner submitted that in the show cause notice dated 30.8.2005, though it is mentioned that on the receipt pf the complaint dated 12.8.2005 by the villagers an enquiry was made by the Regional Supply Officer in which alleged irregularities mentioned in the show cause notice were found, but no such enquiry has been made and the same is not on record. He submitted that in the cancellation order, though there is mention of suspension order No. 938 dated August, 2005, but on record there is no suspension order. He submitted that perusal of the record reveals that some enquiry report was submitted by the Inspector on 26th September, 2005 much after the show cause notice and after passing of the cancellation order. The said enquiry report is Annexure-1 to the supplementary rejoinder affidavit. He submitted that as per the Government order dated 29th July, 2004, it was mandatory to make preliminary enquiry on the receipt of the complaint before suspension of the agreement making allegation on the basis of such enquiry report why the agreement may not be cancelled. While in the present case, there is no enquiry report on record. Therefore, the cancellation order passed by the Sub-Divisional Magistrate is arbitrary and abuse of power and liable to be set aside. In support of his contention, he relied upon the Division Bench decisions in the case of Pramod Kumar v. State of U. P. and others, 2007 (1) EFR 159; M/s. Mahatma Gandhi Upbhokta Sahkari Samiti v. State of U.P. and others, 2001 (19) LCD 513 and the decision of learned Single Judge in the case of Rajpal Singh v. State of U.P, 2008 (26) LCD 891. To verify the contention of the petitioner, record was summoned and District Supply Officer was required to be present in person. Today, Sri Santosh Niranjan, District Supply Officer is present along with the record. Record has been perused along with Sri C.P. Mishra, learned Standing Counsel and Sri Santosh Niranjan, District Supply Officer. It has been admitted by Sri C.P. Mishra, learned Standing Counsel and Sri Santosh Niranjan, District Supply Officer that there is no enquiry report on record prior to the issue of the show cause notice dated 30.8.2005. He submitted that there is no suspension order No. 938 dated August 2005 on record. He further submitted that it appears that the Inspector has subsequently given the enquiry report dated 26.9.2005, which is on record. However, he justified the cancellation order on the basis of the material referred in the order.;