Munna Singh vs State of U.P.and Others

Ritu Raj Awasthi, J.—Heard Sri S.K. Singh, learned counsel for the petitioner and Sri B.R. Verma, learned Standing Counsel and perused the records.

With the consent of the parties the writ petition is being heard finally.

The present writ petition has been filed challenging the order dated 5.12.2002 passed by the S.D.M. Sadar, Hardoi cancelling the license of the fair price shop of the petitioner and the order dated 26.3.2004 passed by the Commissioner, Lucknow Division, Lucknow in appeal No.283/200203.

As per the averments made in the writ petition, the petitioner was allotted the fair price shop in the year 1993 and since then he was continuously running the shop without there being any complaint against him, however, in the year 2000 the new Gram Pradhan Smt. Usha Verma was elected and thereafter her husband Smt. (Sri) Sudhu Ram made a complaint against the petitioner and on the basis of the said complaint the license of the petitioner''s fair price shop was suspended on 5.8.2002 by the Sub Divisional Magistrate, Hardoi. As per the suspension order, Smt. Usha Verma, Pradhan of Gram Panchayat Pipona had made a complaint and upon the said complaint an inquiry was conducted by the Supply Inspector who allegedly found serious irregularities in the distribution of articles in the month of April, May and June 2002. It was alleged that the articles were distributed to those persons whose card numbers were not entered in the register, which was a serious irregularity on the part of the petitioner. It was also alleged that on 26.5.2002 the Kerosene oil was distributed but the signatures or the thumb impression of the cardholders were not obtained in the register, moreover, the card numbers were not mentioned in the said register, therefore, the distribution of kerosene was not in accordance with rules. The petitioner had not furnished any document in relation to the distribution of sugar etc. As such the petitioner was directed to appear along with records before the SubDivisional Magistrate in the month of July 2002 and submit his explanation.

Against the suspension order the petitioner preferred an appeal under Section 12 of Fair Price Shop and U.P. Kerosene Control Order, 1989 before the Commissioner, Lucknow Division, Lucknow. The said appeal was allowed by order dated 25.10.2002 and the matter was remanded back to the S.D.M. Hardoi to decide the case after affording opportunity of hearing to the petitioner (licensee). Thereafter by order dated 5.12.2002 the Sub Divisional Magistrate, Sadar, Hardoi passed the impugned cancellation order by which the license of the fair price shop of the petitioner was cancelled. Against the cancellation the petitioner had preferred the appeal No.283/200203 before the Commissioner, Lucknow Division, Lucknow it is alleged that the Commissioner, Lucknow Division, Lucknow did not consider the relevant material on record and in a mechanical manner without proper application of mind rejected the appeal by the impugned order dated 26.3.2004.

Mr. Sushil Kumar Singh, learned Counsel for the petitioner on the basis of impugned orders dated 26.3.2004 and 5.12.2002 submitted that in fact the impugned orders have been passed taking into consideration the alleged complaint dated 16.9.2002 in respect of which certain alleged inquiry was conducted by Block Development Officer, Ahrauri without providing any opportunity to the petitioner. It has been urged by the counsel for the petitioner that the suspension of the license of the petitioner''s shop by order dated 15.8.2002 was made on the alleged complaint made by the Pradhan Smt. Usha Verma. The petitioner was given show cause notice in this regard and he had submitted his reply on 16.8.2002. Against the suspension order the petitioner had preferred an appeal No.248/2002 and by order dated 25.10.2002 the appellate authority had directed the S.D.M. Sadar, Hardoi to decide the case after providing opportunity of hearing to the petitioner. The certified copy of the appellate order dated 25.10.2002 was submitted before the S.D.M. Sadar, Hardoi on 7.11.2002. However, in the mean time another complaint dated 16.9.2002 was alleged to have been made against the petitioner before the S.D.M. Sadar, Hardoi and the inquiry report on the said complaint was submitted allegedly by Block Development Officer, Ahrauri in this regard. However, neither any notice was issued to the petitioner nor any reply was called from the petitioner with respect to the alleged complaint dated 16.9.2002. The petitioner was not provided any opportunity regarding the alleged complaint dated 16.9.2002 and he has come to know about the said complaint only through the impugned order dated 5.12.2002. It is submitted by the counsel for the petitioner that the certified copy of the order dated 25.10.2002 passed in appeal No.248/2002 was submitted before the learned Sub Divisional Magistrate, Sadar, Hardoi on 7.11.2002 and thereafter no fresh opportunity of submitting the reply was provided to the petitioner and the matter was decided on the basis of the reply dated 16.8.2002. As such the petitioner was not provided any opportunity with respect to the complaint dated 16.9.2002. He was not associated in the alleged enquiry conducted by the B.D.O. Ahrauri.

No counter affidavit has been filed by the State. The learned Standing Counsel on the basis of the material available on record submitted that there is no illegality or irregularity in the impugned order dated 5.12.2002 and the appellate order dated 16.3.2004. He has tried to justify the order dated 5.12.2002 by submitting that no fresh opportunity was required to be given on the complaint dated 16.9.2002 as the proceeding with regard to the cancellation of license of the fair price shop of the petitioner was pending before the SubDivisional Magistrate and the petitioner had full opportunity to file his supplementary reply with respect to the complaint dated 16.9.2002. It is submitted by the learned Standing Counsel that it cannot be believed that petitioner had no knowledge of the complaint dated 16.9.2002 as the same was inquired into by the Block Development Officer, Ahrauri and inquiry report dated 25.10.2002 was submitted to the competent authority.

After Considering the various submissions made by the learned counsel for the petitioner as well as learned Standing Counsel and having perused the record, I am of the opinion that from the perusal of the impugned order dated 5.12.2002, whereby the license of the fair price shop of the petitioner was cancelled, it is very much evident that the competent authority had taken into consideration the complaint dated 16.9.2002 and the report dated 25.10.2002 submitted by the Block Development Officer, Ahrauri. The license of the fair price shop of the petitioner was suspended by order dated 5.8.2002 (Annexure No.3 to the writ petition) which relates to four alleged charges with respect to which the petitioner had submitted his reply on 16.8.2002. By the impugned order dated 5.12.2002, the aforesaid four charges were said to have been proved against the petitioner. However, the SubDivisional Magistrate, Sadar, Hardoi while passing the impugned order dated 5.12.2002 had also taken into consideration the alleged complaint dated 16.9.2002 made by labourers to the District Magistrate and Chief Development Officer. On the said complaint some inquiry was alleged to have been made by the Block Development Officer, Ahrauri who had submitted had (that) report on 25.10.2002. The Block Development Officer, Ahrauri in his report had recommended for cancellation of license of the petitioner. The impugned order dated 5.12.2002 does not show that the petitioner was associated at any stage with respect to the enquiry conducted in regard to the complaint dated 16.9.2002.

From the perusal of the order dated 5.12.2002 it is very much clear that no opportunity was offered to the petitioner and he was neither given show cause notice nor any opportunity to submit his reply with respect to the alleged complaint dated 16.9.2002.

The learned Commissioner, Lucknow Division, Lucknow while deciding the Appeal No.283/200203 filed by the petitioner against the order of cancellation dated 5.12.2002 agreed with the findings given by the SubDivisional Magistrate in the order dated 5.12.2002 without taking into consideration the relevant material fact that no opportunity was provided to the petitioner with respect to the alleged complaint dated 16.9.2002.

In view of the aforesaid facts, I am of the considered opinion that no adequate opportunity was provided to the petitioner before passing the impugned order dated 5.12.2002 passed by the S.D.M. Sadar, Hardoi hence bad in the eyes of law. The order dated 26.3.2004 passed in appeal No.283/200203 by the learned Commissioner, Lucknow Division, Lucknow is also not sustainable in the eyes of law. The order dated 5.12.2002 as contained in Annexure No.2 to the writ petition and order dated 26.3.2004, as contained in Annexure No.1 to the writ petition are hereby quashed. The liberty is given to the competent authority to pass a fresh order by affording adequate opportunity of hearing to the petitioner. The writ petition is allowed. No order as to costs.

(Petition allowed)