Shakir Ali vs Commissioner, Lucknow Division, Lucknow and Others

Rajiv Sharma, J.

Heard Mr. K. S. Rastogi, learned Counsel for the petitioner and Mr. Sanjay Sarin, learned Standing Counsel.

By means of the instant writ petition, the petitioner is assailing the order dated 13.12.2006 passed by the Commissioner, Lucknow Division, Lucknow, contained in Annexure No.1 to the writ petitions and the orders dated 24.12.2005 and 25.2.2006 passed by the SubDivisional officer, Shahabad, contained in Annexure Nos.2 and 3 to the writ petition respectively.

Brief facts of the present case are that when the petitioner contested the elections and elected for the post of Gram Pradhan in the year 2005, enmity took place with the former Gram Pradhan. Thereafter, on the basis of the complaint made by the supporters of former Gram Pradhan, they have been registered as complaint nos.18604 and 14916, which were enquired into by the district administration. Though the enquiry report was submitted, yet the same has not been furnished to the petitioner. On coming to know the enquiry report and complaints, the petitioner himself filed an affidavit before the SubDivisional officer, Shahabad refuting the allegations levelled in the complaint as well as enquiry report. The opposite party No.2, on 19.12.2005, passed an ex parte order, without providing opportunity of hearing for forfeiting the security of Rs.5,000/ in favour of State of U.P. and also warned the applicant and withdrew the attachment and allowed the petitioner to work as fair price shop dealer.

Learned counsel for the petitioner submits that the SubDivisional Officer has cancelled the agreement on the ground of nonproduction of records, which the petitioner had always tried to produce before him. Further, the enquiry has not been conducted in accordance with law because the petitioner has not been given any notice or intimation before passing the order. The SubDivisional Officer has not afforded opportunity of hearing. According to the petitioner, the impugned orders are also suffering from the principles of natural justice and double jeopardy, as the license of the petitioner has been cancelled. The authorities have failed to consider that no enquiry report was served upon the petitioner. Without considering the material facts, the Appellate Authority rejected the appeal.

On the other hand, learned Standing Counsel submits that several complaints had been received against the petitioner in the past, at different intervals with the result that the he was penalized by forfeiting the security amount of Rs.5,000/ and Rs.4,000/ and he was warned to mend his wrong doings, but he could not avail it. Ultimately, his fair price shop license was suspended and after considering his reply, his license was cancelled. Several villagers, who did not get essential commodities from his fair price shop, were compelled to file Lokvani complaints which were enquired by the NaibTahsildar and allegations made in the complaints were found to be true. Further, the NaibTahsildar and Supply Inspector made an open enquiry in the village. Therefore, the petitioner cannot say that he was punished thrice in the past for his wrong dongs but even after giving him change to mend his ways, he could not avail that opportunity and continued to harass the general public in not distributing the essential commodities from his fair price shop.

Refuting the submissions made by the learned Standing Counsel, learned Counsel for the petitioner submits in view of decision reported in 2003 LCD (21) 1128, earlier warnings cannot be ground for suspension or cancellation of the fair price shop''s license, hence the order for forfeiting the security amount is wholly illegal and baseless. As a matter of fact, the Pradhan and the persons belonging to his party, filed complaints, through Lokwani, on which the enquiry made whatsoever by the NaibTahsildar was ex parte. No fair enquiry was made and only the paper work has been done.

In support of this argument, the copy of the report on which reliance is placed by an authority, it should be furnished to a person against whom order is passed, he has placed reliance on a decision of this Court in M/S Mahatma Gandhi Upbhokta Sahkari Samiti Versus State of U.P and others [2001 (19) LCD 513].

In M/S Mahatma Gandhi Upbhokta Sahkari Samiti Versus State of U.P and others [2001 (19) LCD 513] on which reliance has been placed by the learned counsel for the petitioner, the controversy was that the cancellation order was passed on the basis of inquiry conducted by SubDivisional Magistrate but the copy of the inquiry report on which reliance was placed was not furnished to the petitioner. A Division Bench of this Court comprising of Hon''ble Mr. Justice S.K. Sen (the then Chief Justice) and Hon''ble Jagdish Bhalla, J. (as he then was) held that when report of inquiry has been relied upon by the disciplinary authority, that report has to be furnished to the person who is effected by the same. In that view of the matter, we are of the view that the impugned order suffers from the violation of the Principle of Natural Justice.

The Hon''ble Supreme Court in iota of cases has reiterated that a person who is put to any harm, he shall first be afforded adequate opportunity of showing cause. In D.K. Yadav Vs. J.M.A. Industries; (1993) 3 SCC 259 the Supreme Court while laying emphasis on affording opportunity by the authority which has the power to take punitive or damaging action held that orders affecting the civil rights or resulting civil consequences would have to answer the requirement of Article 14. The Hon''ble Apex Court concluded as under:

"The procedure prescribed for depriving a person of livelihood would be liable to be tested on the anvil of Article 14. The procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. Article 14 has a pervasive procedural potency and versatile quality, equalitarian in its soul and principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable, and not arbitrary, fanciful or oppressive."

In National Building Construction Corporation v. S. Raghunathan; (1998) 7 SCC 66, it was observed by the Apex Court that a person is entitled to judicial review, if he is able to show that the decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he is informed the reasons for withdrawal and the opportunity to comment on such reasons.

While entertaining the writ petition, this Court, vide order dated 19.1.2007 provided that no fresh allotment of the shop in question shall be made. However, department will be at liberty to make an alternative arrangement of attaching the cardholders with any other nearby fair price shop.

In the instant case, admittedly, a copy of the report on which reliance was placed, was not furnished to the petitioner, therefore, the impugned orders suffer from the legal infirmities and have been placed in blatant disregard of the provisions of the natural justice. The appellate authority committed an error in not taking into account the settled principle of law relating to natural justice and dismissed the appeal.

For the reasons aforesaid, the writ petition is allowed and the impugned orders 24.12.2005 and 25.2.2006 passed by the Licensing Authority and the order dated 13.12.2006 passed by the Appellate Authority are hereby quashed. However, the present order will not prevent the respondents authorities from taking appropriate action strictly in accordance with law and it will be open for the SubDivisional Magistrate concerned to pass fresh order after affording due opportunity of hearing to the petitioner. Till passing of the fresh orders, the interim arrangement for distribution of essential commodities should not be disturbed.