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1967 DIGILAW 110 (ALL)

Jagar Nath Prasad v. Vishwanath Prasad

1967-03-28

GANGESHWAR PRASAD, S.N.DWIVEDI

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JUDGMENT S.N. Dwivedi, J. - This is an appeal against the judgment of a learned Single Judge allowing the writ petition of the first Respondent, Vishwanath Prasad. Vishwanath Prasad is a licensee of a Ganja shop in village Bansdih. His licence expires on March 31, 1967. 2. The District Magistrate cancelled his licence by his order dated July 21, 1966. He filed the writ petition out of which this appeal has arisen against that order. Before the learned single Judge it was argued on his behalf that the order of the District Magistrate is illegal because it was made without affording him an opportunity of hearing. The learned Judge accepted the argument and allowed the writ petition. On this issue the learned Judge recorded the following finding: Is is apparent that the D.M. did not afford any opportunity to the Petitioner to have his say or to meet the report of the District Excise Officer before passing the impugned order. The Petitioner himself approached the D.M. but was denied any hearing or opportunity of explanation. His prayer for such an opportunity was rejected on the ground that orders have already been passed, although the Petitioner had made an application before the orders had actually been passed. 3. We have heard counsel for the Appellant as well as the Standing Counsel. We agree with the above said finding of the learned fudge. The evidence on record fully bears it out. 4. On the said finding the question is whether the cancellation of the licence was illegal. 5. The power to cancel a licence is granted to the licensing authority by Section 34 of the UP Excise Act (hereinafter called the Act). Section 34 specifies the circumstances in which a licence may be cancelled. We are concerned with the circumstances mentioned in Clause (b) of Sub-section (1) of Section 34. It provides that the licencing authority may cancel or suspend a licence in the event of any breach by the holder of such licence or by his servant or by any one acting on his behalf with his express or implied permission of any of the terms or conditions of such licence. 6. There is no express provision in the Act or the rules thereunder requiring the licencing authority to give an opportunity of hearing to a licensee before his licence is cancelled. 6. There is no express provision in the Act or the rules thereunder requiring the licencing authority to give an opportunity of hearing to a licensee before his licence is cancelled. It does not, however, conclude the matter against the Petitioner. It is still to be seen whether Section 34 impliedly requires that the licencing authority should hear the licensee before cancelling his licence. For this purpose it is necessary to consider certain features of the Act. 7. Firstly, the licence grants an important privilege to the licensee. The privilege concerns his fundamental right to carry on a business. Secondly, a condition of the licence provides that the Collector can, on the cancellation of the licence, resell the licence at the risk of the licensee. It further provides that the licensee shall be liable for any loss arising from the resale of the licence. The cancellation of a licence is thus followed by important consequences. A licensee may be liable to pay the difference between his bid and the bid of his successor. Thirdly, the grounds mentioned in Clause (b) of Sub-section (1) of Section 34 for cancelling a licence prescribe an objective standard. Whether there has been a breach of the conditions of the licence may be found after a full fledged enquiry in which the licensee is also given an opportunity of hearing. Fourthly, Section 11(1) of the Act provides for an appeal against the order of the Collector cancelling the licence to the Excise Commissioner. Section 11(2) provides for a revision to the State Government against the order made by the Collector or the Excise Commissioner. 8. Certain rules have been made regulating the right of appeal and revision. Rule 136 provides that a petition of appeal shall be accompanied by the order in original or by a certified copy of it. Rule 137 provides that any person aggrieved by an order of the Collector and entitled to appeal against such order shall be entitled to receive an authenticated copy of the order. This rule also applies in regard to the filing of a revision. It will follow from Section 11 and the rules governing the filing of an appeal that the order of the Collector cancelling the licence would be a reasoned order. This rule also applies in regard to the filing of a revision. It will follow from Section 11 and the rules governing the filing of an appeal that the order of the Collector cancelling the licence would be a reasoned order. Again, it is clear that a right of appeal will hardly be an effective right if the Appellant has not been given an opportunity of hearing by the Collector. In a case where a licence is cancelled on a factual charge, the Appellant, if not heard by the Collector, can hardly point out anything to the appellate authority in his favour. 9. On the considerations which we have indicated above we think that the right of hearing is necessarily implied in Section 34(1). We are accordingly of opinion that the licence of the Respondent was illegally cancelled. 10. Counsel for the Appellant as well as the Standing Counsel have urged before us that as the licence of the first Respondent is to expire on March 31, 1967, we should now not make any order which would resuscitate his licence for the short spell of two days. The argument appears to us to be misconceived. The order cancelling the licence of the first Respondent was set aside by the learned single Judge by his order dated January 24, 1967. The Appellant filed an appeal against the said order. We are informed that he had obtained an interim order suspending the operation of the said order. In appeal we are concerned with the question whether the order of the learned single fudge should stand or fall. We have already expressed our agreement with the order of the learned Judge. Accordingly we are unable to understand how we can accept the argument now advanced before us. It may also be pointed out that tin breach of the principles of natural justice is a serious matter and this Court would ordinarily not uphold an order which has been passed without observing fair play. 11. We find no force in this appeal and accordingly it is dismissed with costs. 12. A copy of the order will be issued to the first Respondent on payment of usual charges as soon as possible.