Sita Devi vs State of U.P.and others

Pradeep Kant and Devi Prasad Singh, JJ.—The petitioner is a licensee of the fair price shop. His licence has been suspended by means of an order dated3.8.2007. The order says that Gaon Sabha has passed a resolution considering the complaints of various persons for suspending the licence and the SubDivisional Magistrate, on the basis of the aforesaid resolution, has suspended the licence.

Apart from the plea that the SubDivisional Magistrate has suspended the licence on no valid ground, it has been vehemently urged that since the order of suspension has been passed without affording prior opportunity to the petitioner, therefore, the same is bad. In support of the aforesaid plea, reliance has been placed upon the provision of Para 8 (2) of the Uttar Pradesh Scheduled Commodities Dealers (Licensing and Restriction Hoarding) Order, 1989, hereinafter referred to as 1989 Order.

The 1989 Order has been issued by the State Government for securing equitable distribution and availability of essential commodities at fair price and, therefore, in exercise of the powers under section 3 of the Essential Commodities Act, 1955 read with the Government of India, Ministry of Agriculture and Irrigation (Department of Food) Notification No. G.S.R. 800, dated June 9, 1978, issued under section 5 of the said Act and all other powers enabling him in this behalf and with prior concurrence of the Central Government, the Governor has made the Order of 1989.

The Order aforesaid, gives the procedure for issuance of licence, one time licence and fees, deposit of security and power to grant the licence or refuse the same and in Para 8, the consequence of contravention of condition of licence has been prescribed, which reads as under:

"8. Contravention of condition of licence. (I) No licensee or his agent or servant or any other person acting on his behalf shall contravene any provision of this order or any of the terms or conditions of the licence.

(2) If the licensing authority is satisfied that any such licensee or his agent or servant or any other person acting on his behalf has contravened any provision of this order or the terms and conditions of the licence, it may without prejudice to any other action that may be taken against him by order in writing cancel or suspend his licence either in respect of all scheduled commodities covered by it or in respect of such of these commodities as it may think fit:

Provided that no order shall be made under this subclause unless the licensee has been given a reasonable opportunity of stating his case against the proposed cancellation or suspension, as the case may be:

(3) Subject to the control of the State Government the licensing authority may during the pendency or in contemplation or proceeding under subclause (2) suspend such licence.

(4) It shall be lawful for licensing authority to cancel a licence if the licensee has been convicted for contravention of any order made under section 3 of the Essential Commodities Act, 1955 relating to foodstuffs.

(5) The proviso to subclause (2) shall apply where a licence is cancelled under Clauses (4).

(6) The licence cancelled under Clause (4) shall be restored where such conviction is set aside by any Court of competent jurisdiction or as the case may be."

Para 9 prescribes for forfeiture to security deposit and Para 10 prescribes for appeal, whereas Para 11 prescribes for restriction on possession of scheduled commodities to the excess of the quantity specified therein.

The plea of the petitioner that proviso to subclause (2) of Para 8 makes it obligatory to provide reasonable opportunity of stating his case against the proposed cancellation or suspension and, therefore, no suspension order could have been issued without affording such opportunity, is to be tested on consideration of the aforesaid provision of Para 8 in its entirety i.e. the intention and the object of the proviso and the purpose for which the aforesaid Para has been framed.

Para 8 prohibits any licensee or his agent or servant or any other person from acting in a manner which contravenes any provision of the Order, namely, 1989 Order, or any of the terms or conditions of licence. In case there is contravention of conditions of licensee or the Order and if licensing authority is satisfied that if any such licensee or his agent or servant or any other person acting on his behalf has contravened any provision of the Order or terms and conditions of the licence, then without prejudice to any other action, which might be taken against such person, he can by order in writing, cancel or suspend his licence. If his licence is cancelled, it means licensee would have no further right to continue with the business with respect to any scheduled commodity but in case, after his satisfaction, the licensing authority passes an order in writing for suspending the licence then such a suspension may be done in respect of either all scheduled commodities covered by it or in respect of such of these commodities as it may be decided by the licensing authority. This suspension of the licence with respect of all scheduled commodities or with respect to few of the scheduled commodities, is an order of suspension by way of punishment, where cancellation may not be needed as a further step for concluding the proceedings.

The proviso attached to subclause (2) makes it clear that it would be applicable in the matter where suspension or cancellation is ordered under subclause (2) and not otherwise. This stands clarified by the provisions of subclause (3), which says that ''subject to the control of the State Government the licensing authority may during the pendency or in contemplation or proceeding under subclause (2) suspend such licence''. The language does not call for any ambiguity that licensing authority during pendency or in contemplation of the proceedings or proceedings under subclause (2) can suspend the licence.

Subclause (2) is a provision where licence has to be cancelled or suspended. Before passing an order of suspension or cancellation under subclause (2), the licensing authority has the power to suspend the licence, as provided in subclause (3).

If the argument of the learned Counsel is accepted that in every case of suspension, prior opportunity is a must, then the provisions of subclause (2) and subclause (3) would contradict each other and would make either of the provisions redundant or nugatory. While interpreting the language, meaning and intention of the provisions of the aforesaid order, it has to be kept in mind that the words used should not be read so as to negate the meaning of one or the other provision or sentence or word given therein. In case intention of the order was to provide opportunity in every case of suspension, there was no occasion for introducing or incorporating subclause (3) in the para. Suspension or cancellation under subclause (2), would require prior opportunity to be given to the licensee. But suspension during enquiry or in contemplation of the proceedings or enquiry, for passing an order under subclause (2) does not require any prior opportunity to be given. The licensee would have full opportunity to meet the charges, after his licence is suspended in contemplation of the proceedings or during pendency of the proceedings, as enunciated therein and, therefore, no prejudice can be said to have been caused to him in case prior opportunity is not afforded.

In the instant case also, the suspension order appoints an enquiry officer and requires the petitioner to submit explanation to show cause as to why his licence be not cancelled.

Under the circumstances, the plea that since the petitioner has not been afforded an opportunity before passing of the suspension order, therefore, suspension is bad, does not stand and cannot be accepted. The petitioner is at liberty to submit reply within next 15 days to the authority concerned and in case such reply is submitted, the Sub Divisional Magistrate shall consider the matter expeditiously, say within a maximum period of three weeks thereafter. The resolution of Gaon Sabha, if has not yet been given to the petitioner, shall be given to him on making an application to that effect to the Sub Divisional Magistrate, so that he may file his reply effectively.

Subject to the aforesaid observations, the writ petition is dismissed.