Gorakh Prasad vs State of U.P. and Others

Hon''ble Pankaj Naqvi, J.—Heard Sri Manoj Kumar Singh, Learned Counsel for the petitioner and learned Standing Counsel for the State-respondents.

By means of the present writ petition the petitioner challenges the order dated 4.4.2008 (Annexure-8 to the writ petition) passed by respondent No. 3, whereby fair price licence of the petitioner has been cancelled, and the order dated 26.6.2008 (Annexure-10 to the writ petition) passed by respondent No. 2 wherein his appeal has been dismissed.

The petitioner is a fair price dealer. It appears on 22.1.2008 he was issued a show cause notice by the District Supply Officer, Ghazipur wherein it was alleged that on 15.1.2008 on the occasion of Tehsil Diwas certain complaints were received in respect of which an inquiry was conducted by the Regional Supply Inspector, Tehsil Mohammdabad and that on the basis of his report dated 4.2.2008 certain irregularities in respect of distribution of food grains and sugar have been reported in respect of specified BPL card holders i.e. over charging of kerosene; six card holders belonging to the Antodaya scheme are being sold rice at exorbitant price and therefore, in respect of the said allegations, petitioner was called upon to submit his reply along with evidence within a period of 3 days. The petitioner submitted his reply on 19.2.2008 alleging therein that complaints are politically motivated and that inquiry was conducted behind his back and at the same time it was also contended that the distribution of food grains, sugar and kerosene to all the category of card holders is being properly and regularly made and that the said Inquiry Officer neither recorded the statement of the petitioner nor he verified the stock register and that he only recorded the statements of complainants. After considering the reply submitted by the petitioner, the District Supply Officer, Ghazipur suspended the licence of the petitioner vide his order dated 22.2.2008 and also called upon the petitioner to submit his written explanation along with the evidence and at the same time an ad-hoc arrangement was made so that distribution of essential commodities could be carried out uninterruptedly. Subsequently, the District Supply Officer, Ghazipur vide his order dated 4.4.2008 has cancelled the fair price licence of the petitioner on the ground that during the course of inquiry, irregularities have been detected in respect of specified and named BPL card holders and Antodaya card holders and also on the ground of over charging of kerosene.

Against the said order of cancellation the petitioner preferred an appeal which too has come to be dismissed on 19.4.2008, hence the present petition.

The first contention of Learned Counsel for the petitioner is that the show cause notice dated 11.2.2008 which was issued to the petitioner was in respect of one set of persons and that the same was also replied by the petitioner vide his reply dated 19.2.2008, whereas the order of suspension dated 22.2.2008 altogether refers to complaints/allegations of different set of persons and therefore, order/cancellation dated 4.4.2008 could not have been passed on the ground that petitioner has not submitted any reply to the aforesaid order of suspension dated 22.2.2008.

The submission of Learned Counsel for the petitioner is not correct for the reason that even though reply dated 19.2.2008 submitted by him was only in response to the show cause notice dated 11.2.2008 and in case the respondents have not chosen to pass any further order of cancellation based on the show cause notice dated 11.2.2008 then the petitioner can not raise any grievance therefrom. The order of suspension dated 22.2.2008 is altogether on a different ground for which the petitioner was put to notice and it appears that he has not responded to the said notice of suspension by submitting his reply and evidence before the Licensing Authority and therefore, the said contention of the petitioner is devoid of merit and deserves to be rejected.

The second submission of Learned Counsel for the petitioner is that the impugned orders are bad in law in as much as, no notice or opportunity or for that matter the report of the Inquiry Officer was ever submitted to the petitioner.

On examination of the aforesaid issue, the court finds that the order of cancellation dated 4.4.2008 has been passed primarily on the ground that certain complaints were received from certain specified BPL/APL card holders with regard to the irregular short distribution of food grains, sugar and kerosene etc.

The Government Order dated 29.7.2004 prescribes an elaborate procedure providing the mode and manner in respect of suspension/cancellation of the fair price licences. This government order has been filed as Annexure-1 to the writ petition. It also provides that while conducting the inquiry the principles of natural justice would be adhered to. It also provides that adequate opportunity has to be given to the petitioner in the inquiry proceedings. Admittedly cancellation of fair price licence has civil consequences.

This court in a decision reported in 2010 (6) ADJ 339 Abu Baker Vs. State of U.P. and others has held as follows:

There is no material on record indicating either the petitioner was given any opportunity to cross-examine the witness who had deposed against him or the copies of the statements of witnesses so recorded were furnished to him. Thus what follows from the above discussion is that the petitioner has been penalised on the basis of the statements of Antodaya and BPL card holders recorded behind his back although neither the copies of the statements of the aforesaid witnesses were furnished to the petitioner nor he was given any opportunity to cross-examine the witness so examined.

Applying the law laid down in the aforesaid case, the court finds that the inquiry proceedings were conducted in flagrant violation of the Government Order dated 29.7.2004 and the law laid down by this Court and therefore, on the facts of the present case petitioner, ought to have been permitted to participate in the aforesaid inquiry and the statements of the complainants should not have been recorded behind the back of the petitioner or without furnishing the statements of the complainants to him and also without giving him an opportunity to crossexamine the witness and thus any action based on any such report or evidence could not become a foundation for passing an order of cancellation of fair price licence of the petitioner.

The writ petition succeeds. The orders dated 4.4.2008 (Annexure-9) and 26.6.2008 (Annexure-10) are hereby quashed. However, it shall be open for the respondents to pass fresh orders in the light of the observations made hereinabove and in accordance with law within a period of four months from the date of the production of the certified copy of this order.

No order as to costs.