Cancellation of fair price shop agreement should be based on evidence and material on record, not on presumptions and conjectures.

JUDGMENT :

1. Heard Sri Vishal Tandon along with Sri Mahendra Singh, learned counsel for the petitioner and learned Standing Counsel.

2. Sri Junaid Alam, learned counsel is also present. He has instructions from the complainant. His request for adjournment has been declined as the complainant is neither a party impleaded in the petition not there is any application for impleadment.

3. Present petition has been filed by the petitioner against the order dated 19.06.2021 passed by the Sub-Divisional Officer, Tehsil Tamkuhiraj, District Kushinagar whereby the said authority had cancelled the petitioner's fair price shop agreement for the Village Patherwa. The appeal filed by the petitioner to challenge the aforesaid order, has also been dismissed by the Joint Commissioner (Food & Civil Supply), Gorakhpur Division, Gorakhpur vide order dated 02.11.2021.

4. Brief facts giving rise to the present petition are, the petitioner who is a member of OBC, along with the complainant Sanjay applied for grant of a fair price shop at Village Patherwa. In that, the petitioner was successful. Allotment of the said fair price shop was made in her favour on 31.12.2016. After passage of almost three years, above described Sanjay made a written complaint alleging irregularities in distribution of food-grains etc. by the petitioner in the months of February and March 2017. On that, a notice was issued to the petitioner on 27.12.2019 without conducting any preliminary inquiry. However, the petitioner was required to show cause to that notice failing which, it was proposed, to initiate regular proceedings. In any case, she submitted a reply on 16.01.2020 and denied the fact allegations made against her. Thereafter, another similar notice was issued to the petitioner on 19.08.2020.

5. For the first time, on 24.11.2020 i.e. almost four years after allotment of the fair price shop to the petitioner, a chargesheet was issued. Perusal of the chargesheet reveals that the same is based solely on the fact allegations made by Sanjay with respect to the distribution of food-grains made by the petitioner, in the month of March 2017 (almost five years earlier).

6. The charges framed in the chargsheet are summarized as below:-

(1) It was not cleared as to whom the essential commodities have been distributed by recording their descriptions against the name 'Ram'. That distribution was alleged to have been made against 291 units.

(2) Food-grains were distributed twice to 43 units holders.

7. On 30.01.2021, a further notice was issued by the S.D.M. requiring the petitioner to submit a consolidated reply to all the complaints and their replications submitted by the complainant Sanjay. Legality of that procedure apart, the petitioner complied with that notice and submitted her reply dated 06.03.2021. In that, she fairly stated thus:-

Being new to the trade, in the initial period, she admitted the possibility of mistakes. Thus, she admitted to the possibility of 16 units of food-grains distributed having remained from being recorded. She further stated that certain persons took advantage of ignorance or lack of inexperience of the petitioner and produced double print-outs of the quota allotted to them and they might have received supply against the same, twice.

8. Other than that, she specifically stated, no supply had been made to any person against the name 'Ram'. All distributions were made in the presence of neutral observer who had never raised any objection. Other than the above, the petitioner further emphasized, arising from unsuccessful effort to be appointed fair price shop agent, the complainant Sanjay was the only person aggrieved who made any complainant against the functioning of the petitioner. Thus, it was suggested, the complaint was motivated. It was further submitted, the petitioner's husband was suffering from Muscular Distrophy and was thus confined to bed. The fair price shop being run by the petitioner was stated to be the only source of livelihood avai