Maiku Lal vs State of U.P.and Others

Ritu Raj Awasthi, J.—Heard the learned counsel for the petitioner as well as learned Standing Counsel and perused the records.

By means of the present writ petition, the petitioner has challenged the impugned order of cancellation dated 8.10.2001 passed by the SubDivisional Officer, TehsilMohanlalganj, Lucknow by which the licence of the Fair Price Shop of the petitioner has been cancelled. The petitioner has also challenged the suspension order dated 29.8.2001 as well as the order in appeal dated 26.6.2002 passed by the opposite party No.2, Commissioner, Lucknow Division, Lucknow.

The facts of the case as given in the writ petition are that the petitioner was granted the licence of Fair Price Shop for distribution of Sugar and Kerosene oil in Nyaya Panchayat, Nigoha, Gram Sabha Bhava Khera, Vikas Khand and Tehsil Mohanlalganj, District Lucknow. On the basis of the complaint dated 28.8.2001, the Upper Zial Adhikari (Suply), Lucknow had ordered for an enquiry vide order dated 22.8.2001 and thereafter, the licence of Fair Price Shop of the petitioner was suspended and the petitioner was directed to submit reply to the show cause notice within one week. The suspension order dated 29.8.2001 is annexed as Annexure No.2 to the writ petiton. The main allegations in the suspension order are that at the time of inspection, the Fair Price Shop was found closed, no signboard was found displayed at the shop and the shop was not being run at the assigned place. The rationcard holders had given statements that they were not provided the wheat under ''Antyodya Yojana'' for the month of April, 2001 and May, 2001 but the distribution of the grains was not made till 25.8.2001. The petitioner has submitted his reply to the show cause notice on 18.4.2001 categorically denying all the allegations. It was submitted by the petitioner in his reply that he had fallen ill on 14.4.2001 and due to illness, he was unable to open the shop and therefore, the Fair Price Shop remained closed during the period from 14.8.2001 to 30.8.2001. The petitioner has submitted the medical certificate dated 30.8.2001. It was further submitted that at the time of inspection the signboard was already displayed on the shop. It is wrong to allege that the shop of the petitioner was not functioning at the fixed place as the said shop is being run at the place as mentioned in the compromise letter. The Fair Price shop is situated in the house of Amar Pal Singh. The allegation that the Cardholders were not distributed the wheat under ''Antyodya Yojana'' is totally wrong as these persons did not have enough money at the relevant time and when these persons had arranged the money, they were given the wheat. All such persons have submitted their joint affidavit in which they have clearly stated that they have no complaint against the petitioner with respect to the distribution of articles from the Fair Price shop. The Photostat copy of the joint affidavit dated 7.9.2001 is on record as Annexure No.4 to the writ petition.

It has been urged by the learned counsel for the petitioner that the petitioner had lifted the stock of grains on 24.7.2001 which was distributed on 26.7.2001, 27.7.2001, 28.7.2001, 29.7.2001 and 30.7.2001 and the remaining stock was distributed on 31.8.2001 as the petitioner had fallen ill from 14.8.2001 to 30.8.2001 and the shop remained closed during that period. The petitioner in his reply has also submitted that from the perusal of the sale register and the stock register, it would be evidently clear that he has not committed any illegality or irregularity in distribution of necessary articles from the Fair Price Shop. It has been vehemently urged by the learned counsel for the petitioner that the impugned suspension order as well as cancellation order have been passed on the basis of the ex parte report of the Supply Inspector, without affording full opportunity of hearing to the petitioner and without providing the copy of the said report of the Supply Inspector which amounts to violation of principle of natural justice and denial of opportunity of defence to the petitioner.

After receiving of the impugned cancellation order, the petitioner had preferred an appeal before the learned Court of the Commissioner, Lucknow Division, Lucknow, wherein, it was specifically pleaded that the impugned order of cancellation dated 8.10.2001 had been passed on the basis of ex parte enquiry report of the Supply Inspector, the copy of which was never provided to the petitioner and the order of cancellation has been passed without providing opportunity of hearing to the petitioner.

The learned Commissioner has dismissed the appeal by the impugned order dated 26.6.2002 without any application of mind and without considering the relevant and necessary facts and circumstances of the case. The order passed by the learned Commissioner, Lucknow Division, Lucknow, suffer from surmises and conjecture.

The learned Standing Counsel on the basis of the counter affidavit filed on behalf of the respondents has submitted that a complaint was received regarding illegality and irregularity in distribution of the commodities in the Tehsil Diwas. Against the said complaint an enquiry was conducted by the Supply Inspector and in the enquiry report dated 25.8.2001, it was found that serious irregularities have been committed by the petitioner in distribution of the essential commodities. Thereafter, by order dated 29.8.2001, the licence of the petitioner''s Fair Price Shop was suspended and show cause notice was issued to the petitioner requiring him to submit his reply within seven days. In response to the charges as mentioned in the suspension order, the petitioner had submitted his explanation on 10.9.2001. The reply submitted by the petitioner was duly considered and the same was not found satisfactory and the charges levelled against the petitioner were found to be proved, hence the licence of the Fair Price shop of the petitioner was cancelled by order dated 8.10.2001. Against the cancellation order, the petitioner had filed appeal before the learned Commissioner, Lucknow Division, Lucknow. After hearing the learned counsel for the parties, the appeal preferred by the petitioner has been dismissed by the Commissioner, Lucknow Division, Lucknow vide order dated 26.6.2002 and the cancellation order dated 8.10.2001 passed by the Dy. Collector, Mohanlalganj, Lucknow has been affirmed.

In the case of Rajpal Singh v. State of U.P. and others, 2008 (16) LCD 891, it has been held by this Court that nonfurnishing of the Inspection report of the Supply Inspector which was relied upon for cancellation of the licence, amounts to violation of principle of natural justice, hence, the order of cancellation as well as the appellate order was not sustainable in the eyes of law.

The said legal position has been affirmed in a number of decisions rendered by this Court. In the case of Dori Lal v. State of U.P. and others, 2006 (24) LCD 1121, it has been held that the order cancelling the licence passed without the petitioner being provided the copy of the resolution of the village Panchayat as well as the enquiry report, if any and without being afforded opportunity of submitting explanation and hearing, amounts to gross violation of principle of natural justice and hence, it deserves to be quashed.

That a Division Bench of this Court in the case of M/s Mahatma Gandhi Upbhokta Samitis v. State of U.P. and others, 2001 (19) LCD 513, has held that the order of cancellation of licence of Dealer in kerosene oil which has been passed without supplying the copy of the Enquiry report and without affording opportunity of hearing amounts to violation of principle of natural justice and therefore, deserves to be quashed.

I have considered the various submissions made by the learned counsel for the petitioner as well as the learned Standing Counsel.

From the perusal of the impugned suspension order dated 29.8.2001 and the cancellation order dated 8.10.2001, it is very much clear that the suspension of the licence of the fair price shop of the petitioner was issued on the basis of the enquiry report submitted by the Supply Inspector. A perusal of the enquiry report annexed as Annexure No.CA1 to the counter affidavit clearly shows that the enquiry dated 28.8.2001 was held ex parte in absence of the petitioner.

The submission of the counsel for the petitioner finds force that the impugned order of cancellation has been passed on the basis of the enquiry report submitted by the Supply Inspector, the copy of which was not supplied to the petitioner due to which the petitioner was denied the proper opportunity of defence and it amounts to violation of principle of natural justice.

From the perusal of the record, it is evidence that the impugned order of cancellation dated 29.8.2001 was passed merely considering the reply submitted to the show cause notice by the petitioner and no opportunity of hearing was provided to the petitioner. The learned Commissioner while deciding the appeal filed by the petitioner against the order of cancellation of the Fair Price Shop did not properly consider the fact that the enquiry report which was the main basis for cancellation of the licence of Fair Price Shop was not provided to the petitioner and the petitioner did not get adequate opportunity of defence before passing of the impugned order dated 8.10.2001.

In view of the legal position as discussed above, I am of the considered opinion that the impugned order dated 26.6.2002 passed by the Commissioner, Lucknow Division, Lucknow as contained in Annexure No.1 to the writ petition as well as the order dated 8.10.2001, passed by the opposite party No.3 as contained in Annexure No.6 to the writ petition deserves to be quashed and are hereby quashed. The writ of certiorari is issued to this effect.

Accordingly, the writ petition is allowed.

However, it shall be open to the respondents to pass fresh order in accordance with law after giving adequate opportunity of hearing to the petitioner which may be done expeditiously, preferably within a period of two months from the date of production of a certified copy of this order before the respondent No.3.

This writ petition succeeds and is allowed in the terms indicated above. No order as to costs.

(Petiton allowed)