IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. No. 25 of 2011 Satyapal Singh … ……..Appellant Versus Commissioner Garhwal Mandal, Garhwal & others ………. Respondents Mr. Lokpal Singh, Advocate for the appellant. Mr. Vinay Kumar, Standing Counsel for the State / respondents no. 1 to 3. JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble U.C. Dhyani, J. BARIN GHOSH, C.J. (Oral) On allegations said to have been made by alleged villagers, Up Zila Adhikari asked the Naib Tehsildar to make an enquiry. Naib Tehsildar made an enquiry without notice to the appellant and submitted his report where he indicated that there is substance in the allegations against the appellant. In those circumstances, Up Zila Adhikari issued a show cause notice to the appellant calling upon him why in the backdrop of the charges against him as indicated in the show cause, his license to carry on fair price shop shall not be cancelled. Petitioner gave a reply thereto. Up Zila Adhikari then considered the charge sheet and the reply so given by the appellant, and concluded the matter on the basis of the enquiry report submitted by the Naib Tehsildar holding that the appellant is guilty of the charges and that those stand proved. By acting in such a manner Up Zila 2 Adhikari has shown utter disregard to the principles of natural justice, law and equity. He failed to take note of the fact that the license to run the fair price shop is the source of livelihood of the appellant and that only when it is proved beyond reasonable doubt that the appellant has misused his license, the same can be cancelled. In order to come to a conclusion that the appellant has misused his license there must be a finding recorded on the basis of the evidence collected in the manner evidences are collected namely, in presence of and upon notice to the appellant. In the instant case, the enquiry was conducted by Naib Tehsildar whereas, Naib Tehsildar is not authorized by the Government to make any enquiry. Up Zila Adhikari who is authorized by the Government to carry out such enquiry could not delegate his power to conduct enquiry to the Naib Tehsildar. Consequently, the report of the Naib Tehsildar is of no effect. On the basis thereof grant of a license could not be interfered with, though on the basis thereof a prima facie opinion could be formed for the purpose of proceeding to cancel the license. The said state of affair was highlighted in the writ petition which has been dismissed by the judgment and order under appeal on the hypothesis that the enquiry was conducted by the Up Zila Adhikari but evidence and report was sought from the Naib Tehsildar. We are unable to accept the said finding recorded in the judgment and order under appeal. The fact remains that no enquiry was conducted by the authority competent to enquire namely, Up Zila Adhikari. He merely issued a show cause on the strength of a report submitted by the Naib Tehsildar. After receiving reply to the show cause, it was obligatory on the part of Up Zila Adhikari to enquire into 3 matter. Up Zila Adhikari utterly failed and neglected to discharge his said obligation. By giving a go by to all canons of law, Up Zila Adhikari purported to conclude the enquiry by relying upon the enquiry report of the Naib Tehsildar. It was a shameless action on the part of the Up Zila Adhikari. It is surprising that despite these facts are coming into fore, the State Government is not taking any step to ensure that public matters are dealt with by public officers in the manner law requires them to deal with the same. It is therefore, a case where this court must impose exemplary cost on the State Government for its utter failure to ensure discharge of public duty in the manner law requires the same to be discharged. With great effort, we have restrained ourselves from imposing such exemplary cost. We accordingly, set aside the judgment and order under appeal and at the same time, allow the writ petition, quash the order dated 4th September, 2009 and direct Up Zila Adhikari to discharge his obligations in terms of law. Next time probably, he cannot escape from imposition of exemplary cost, if he acts in the manner he has acted in the instant case. It is surprising that even the appellate authority did not find any fault in the order that was appealed against. The appellate authority dealt with the appeal with close mind as is explicit from the records of the case. The appellate authority accordingly, is also guilty of the same offence as has been highlighted above. The appeal stands disposed of accordingly. (U.C. Dhyani, J.) (Barin Ghosh, C.J.) 16.11.2011 16.11.2011 Kaushal 4