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2003 DIGILAW 227 (ALL)

RAJA RAM v. COMMISSIONER AGRA DIVISION AGRA

2003-01-31

ASHOK BHUSHAN

body2003
ASHOK BHUSHAN, J. Heard counsel for the petitioner and learned standing counsel. 2. Counter and rejoinder affidavits have been exchanged and with the consent of the parties, the writ petition is being finally disposed of. 3. By this writ petition, the petitioner has prayed for quashing of the order dated 15th April, 1998 passed by Sub Divisional Officer and the orders dated 19th August, 1994 as well as 4th May, 1998. 4. The petitioner was fair price shop dealer for Kayatha, district Firozabad. By order dated 19th August, 1994, the Sub Divisional Officer cancelled his agreement against which order an appeal was filed by the petitioner which appeal has been rejected by the Commissioner. The counsel for the petitioner challenging the said orders has filed this writ petition. 5. The main contention of counsel for the petitioner is that Sub Divisional Officer cancelled his agreement without affording any kind of opportunity to the petitioner. The counsel for the petitioner has submitted that this contention was also accepted by the Commissioner but Commissioner inspite of accepting this submission erred in dismissing the appeal. The counsel for the petitioner has placed reliance on judgments of this Court in 1996 AWC 61; Mukhtar Ali v. State of U. P. & Others as well as 1996 AWC 152 Sita v. State of U. P. & Others. 6. Learned standing counsel, Sri Taha Bin Islam, opposing the submissions of the counsel for the petitioner, contended that an enquiry was conducted before cancellation of the licence, hence petitioner cannot contend that there was violation of principles of natural justice. Learned standing counsel has referred to the enquiry report copy of which has been annexed as Annexure-4 to the writ petition, submitted by Supply Inspector dated 18th August, 1994. Learned standing counsel submitted that on the spot inquiry was held on which date petitioner was also present and the Supply Inspector found several illegalities with regard to distribution which has rightly been relied by the Sub Divisional Officer while cancelling the agreement. 7. I have heard the counsel for the parties and perused the record. The foremost submission raised by the counsel for the petitioner in support of the writ petition is violation of principle of natural justice. The petitioner has specifically stated in paragraph 4 of the writ petition that Sub Divisional Officer has passed the order without affording any opportunity to the petitioner. The foremost submission raised by the counsel for the petitioner in support of the writ petition is violation of principle of natural justice. The petitioner has specifically stated in paragraph 4 of the writ petition that Sub Divisional Officer has passed the order without affording any opportunity to the petitioner. In the counter-affidavit, in paragraph 5, the said averment has been dealt with. It has been stated in the counter-affidavit that Government order dated 3rd July, 1990 does not require for giving any opportunity before cancelling the licence, hence the petitioner was not entitled for opportunity. From the counter-affidavit, it is thus clear that it has not been denied that the said order has been passed without opportunity rather stand taken in the counter-affidavit is that no opportunity is required. In view of the aforesaid, it is undisputed that the Sub Divisional Officer did not give any notice or opportunity to the petitioner before cancelling the agreement. 8. The submission of learned standing counsel that since the enquiry was conducted by the Supply Inspector, it cannot be said that there was violation of principles of natural justice, also cannot be accepted. From the report of Supply Inspector dated 18th August, 1994 it appears that Supply Inspector has noted several allegations against the petitioner and has also taken statement of certain persons. The said report is dated 18th August, 1994 and on the very next date i. e. 19th August, 1994 the Sub Divisional Officer has cancelled the agreement. In view of the report of the Supply Inspector, it was incumbent upon Sub Divisional Officer to have given opportunity to the petitioner on the allegations made in the report. The Sub- Divisional Officer has relied the report of the Supply Inspector and the allegations made therein against the petitioner. Petitioners agreement has been cancelled on the basis of the allegations, which have been noted in the report. In view of the aforesaid, it is clear that petitioner has been condemned unheard. Although the agreement of the petitioner can be cancelled but when the cancellation takes place on the basis of allegations, it was incumbent upon the Sub Divisional Officer to have given an opportunity before passing the order. The contention of counsel for the petitioner finds support from the judgment of this Court in Mukhtar Alis (supra) and in Sitas case (supra ). The contention of counsel for the petitioner finds support from the judgment of this Court in Mukhtar Alis (supra) and in Sitas case (supra ). This Court in Mukhtar Alis case (supra) has held that by the order dated 3rd August, 1995 valuable rights of the petitioner were affected and a right cannot be taken away without giving an opportunity of hearing. It is further relevant to note that Commissioner in his order has also noted the submission that the agreement was cancelled without notice but Commissioner has observed that there being no provision for giving opportunity, no opportunity was required. The said contention cannot be accepted. The Commissioner also committed error. Since the cancellation of the agreement was on the basis of the allegations against the petitioner, it was incumbent upon the respondents to give notice. Before cancelling the licence or passing any adverse order it was incumbent for the respondents to have given opportunity and cancellation could not have been made without opportunity. 9. The Apex Court in AIR 1982 SC 1550 ; M/s. Raj Restaurant and another v. Municipal Corporation of Delhi, has laid down that before refusing to renew a licence or cancelling or revoking the same, the minimum principle of natural justice of notice and opportunity is must. Following was laid down in paragraph 5 of the aforesaid judgment by the Apex Court: - " (5) Where, in order to carry on business a licence is required, obviously refusal to give licence or cancellation or revocation of licence would be visited with both civil and pecuniary consequences and as the business cannot be carried on without the licence it would also affect the livelihood of the person. In such a situation before either refusing to renew the licence or cancelling or revoking the same, the minimum principle of natural justice of notice and opportunity to represent ones case is a must. It is not disputed that no such opportunity was given before taking the decision not to renew the licence though it is admitted that for the reasons hereinbefore set out the licence was not renewed. Such a decision in violation of the minimum principle of natural justice would be void. Now, it is true that no specific order is made setting out the reasons for refusal to renew the licence. Such a decision in violation of the minimum principle of natural justice would be void. Now, it is true that no specific order is made setting out the reasons for refusal to renew the licence. But the action taken of sealing the premises for carrying on the business without a licence dearly implies that there was refusal to renew the licence and the reasons are not disclosed. And the action disclosing the decision being in violation of the principle of natural justice, deserves to be quashed. " 10. In view of the above, it is fully established that the action of cancelling the agreement of the petitioner was in breach of principle of natural justice and cannot be sustained. The orders of the Sub Divisional Officer dated 19th April, 1994 as well as the order of the Commissioner dated 15th April, 1998 cannot be sustained and are hereby quashed. It will, however, be open to the respondents to take action after complying with the principle of natural justice if they so desire. 11. The writ petition is allowed to the extent as indicated. Petition allowed. .