JUDGMENT By the Court.—Heard learned counsel for the petitioner and learned Standing Counsel and perused the record. 2. The petitioner seeks to challenge the impugned order dated 5.9.2006/Annexure-1 to the writ petition ( admittedly received by the petitioner on September 11, 06 as disclosed in the reply of the petitioner ( copy of which has been enclosed as Annexure-2 to the writ petition by means of which his fair price shop licence/agreement has been suspended requiring him to file explanation within a week. There is no averment in the writ petition stating therein that the said order has been complied with by the petitioner. 3. The main grievance of the petitioner is that he was not given opportunity before the impugned order/Annexure-1 to the writ petition was passed. 4. Learned counsel for the petitioner has place reliance upon Clause 8(2), U.P. Scheduled Commodities Dealers (Licensing and Restriction on Hoarding) Order, 1989. For convenience Clause 8(2) of the Order, 1989 is reproduced below: “8. Contravention of condition of licence: No licence 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 such of these commodities as it may think fit: Provided that no order shall be made under this sub- clause unless the licensee has been given a reasonable opportunity of stating his case against the proposed cancellation or suspension, as the case may be.” 5. Learned counsel for the petitioner further referred to the Division Bench decision of this Court in the case of Ganesha Vs. District Magistrate, Mahoba and another:[2001 (43) ALR 184]. In the said judgment their Lordships referred to the proviso of Clause 8(2) ( already noted above). 6. Learned counsel for the petitioner further referred to the Division Bench decision of this Court in the case of Ganesha Vs. District Magistrate, Mahoba and another:[2001 (43) ALR 184]. In the said judgment their Lordships referred to the proviso of Clause 8(2) ( already noted above). 6. Learned Standing Counsel, however, has drawn our notice to the subsequent Government Order No. 2260/29.6.2004-300 Sa/03 dated 29.7.04 and pointed out that now there is no provision for giving opportunity before passing an order of suspension, and the earlier Order of 1989 in this respect is now no more in existence. The said Order, 1989 has been rescinded vide Clause 24 of ‘The U.P. Scheduled Commodities Distribution Order, 1990, which reads: “24. Rescission.—The Uttar Pradesh Food Grains and other Essential Articles Distribution Order, 1977, published in Gazette vide Notification No. 4851/XXIX-F-11178)-67, dated December 3,1977, and the Uttar Pradesh Scheduled Commodities (Regulation of Distribution) Order, 1989, published in Gazette, vide Notification No. 2350/XXIX-F-11-44-88, dated August 31, 1989 are hereby repealed and the provisions of Sections 6,8 and 24 of the General Clauses Act, 1897 ( Act No. 10 of 1897) shall apply as they apply in relation to the appeal and re-enactment of a Central Act.” 7. According to him, the above Order of 1989 and the decision of Division bench of this Court in Ganesha( Supra) are no more relevant and hence of no avail to the petitioner. 8. He further pointed out that in exercise of power conferred upon the State Government it issued a clarificatory letter dated 29.7.2004 and referred to para 4 of the said Government letter which provides a procedure different to the procedure contained in Clause 8(2) of Government Order, 1989. Para 2 of the said State Government letter dated 29.7.2004 requires that on receipt of complaint preliminary inquiry be held and on that basis, if concerned authority finds that prima facie charges are serious which shall warrant cancellation, pass order of suspending licence and also simultaneously give show cause notice as to why licence be not cancelled. Para 2 of the said State Government letter dated 29.7.2004 requires that on receipt of complaint preliminary inquiry be held and on that basis, if concerned authority finds that prima facie charges are serious which shall warrant cancellation, pass order of suspending licence and also simultaneously give show cause notice as to why licence be not cancelled. For convenience we quote it hereunder: Þ2:- mDr i`”BHkwfe esa eq>s ;g dgus dk funs’k gqvk gS fd xzkeh.k ,oa ‘kgjh {ks=ksa dh mfpr nj dh nqdkuksa ds fuyEcu@fujLrhdj.k ds lEcU/k esa fuEu izfdz;k dk ikyu fd;k tk;%& (i)mfpr nj dh nqdku dk fuyEcu ek= fdlh O;fDr dh f’kdk;r ds vk/kkj ij ugha fd;k tk;A tc fdlh nqdkunkj ds fo#) fdlh lzksr ls f’kdk;r izkIr gksrh gS rks igys mldh izkjafHkd tkWp djk;h tk;A ;fn izkjafHkd tkWp esa nqdkunkj ds fo#) ,slh xEHkhj vfu;ferrk,a izFke n‘“V~;k fl) gks jgh gksa ftuds vk/kkj ij nqdkunkj dh nqdku fujLr gksus dh laHkkouk gks rHkh nqdku dks fuyafcr fd;k tk; vkSj lkFk gh lkFk nqdkunkj dks dkj.k crkvks uksfVl tkjh fd;k tk; fd mldh nqdku D;ksa u fujLr dj nh tk;A ;fn izkjafHkd tkWp esa ik;k tk; fd vfu;ferrk bruh xEHkhj ugha gS fd nqdku ds fujLrhdj.k dh laHkouk gks rks dsoy dkj.k crkvks uksfVl tkjh fd;k tk;A fuyEcu vkns’k@dkj.k crkvks uksfVl ,d ^^Lihfdax vkMZj** gksuk pkfg, rFkk mlesa izkjafHkd tkWp esa ik;h x;h mu lHkh vfu;ferrkvksa dk fooj.k gksuk pkfg, ftudk mRrj nqdkunkj ls visf{kr gksA (ii)( d ) [kkn~; foHkkx ds vf/kdkfj;ksa@ ftyk iz’kklu ds vf/kdkfj;ksa@ vU; izkf/kd‘r O;fDr;ksa }kjk mfpr nj dh nqdku ds vkdfLed fujh{k.k ds nkSjku ;fn ik;k tkrk gS fd nqdkunkj }kjk dksbZ xEHkhj vfu;ferrk dh x;h gS rks Hkh nqdku dsk fu;qfDr vf/kdkjh }kjk vius foosd dk iz;ksx djrs gq, fuyafcr fd;k tk ldrk gSA ( [k ) [kkn~; foHkkx ds vf/kdkfj;ksa@ftyk iz’kklu ds vf/kdkfj;ksa@vU; izkf/kd‘r O;fDr;ksa }kjk ;fn nqdkunkj dksbZ vfu;fer dk;Z] forj.k esa xM+cM+h ;k vuqlwfpr oLrqvkssa dh dkykcktkjh djrs gq, idM+k tkrk gS rks Hkh fu;qfDr vf/kdkjh }kjk vius foosd dk iz;ksx djrs gq, nqdku dks fuyafcr fd;k tk ldrk gSA mDr ifjfLFkfr;ksa esa nqdku ds fuyacu dh fLFkfr esa Hkh ^^Lihfdax vkMZj** ls fuyacu vkns’k tkjh fd;k tk;sxk ftlesa lHkh vfu;ferrkvksa dk mYys[k gksxk rFkk nqdkunkj dks dkj.k crkvks uksfVl tkjh fd;k tk;sxk fd D;ksa u mldh nqdku fujLr dj nh tk;A** 9. Clauses 21, 22, 23, 25, 27, 28 and 31 of The Uttar Pradesh Scheduled Commodities Distribution Order, 2004 ( published in U.P. Gazette dated 20.12.2004) read as under: “21: Monitoring in accordance with the order issued by the State Government :-(1) A Food Officer shall ensure proper monitoring of fair price shops and prescribe model sale register, stocks register and ration card register in accordance with the order issued by the State Government. (2) Food Officer shall ensure regular inspection of fair price shop in his area not less than once in a month in urban area and not less than once in rural area by the supply inspector. The State Government may issue order specifying the inspection schedule, list of checkpoints and authority responsible for ensuring compliance of the said order. (3) (i) Competent authority shall ensure constitution of Vigilance Committees, Administrative Committee ( Gram Sabha Level) art fair price shop which shall monitor the functioning of the fair price shop. (ii) Meeting of such Committees shall be held on regular basis and in a manner as directed by the State Government. (4)Competent Authority shall ensure a periodic system of reporting and the complete information in this regard shall be sent in the prescribed form as follows: (i) By fair price shops to the District Authorities by the 7th of the month following the month for which allocation is made in Form A. (ii) By the District Authorities to State Government by t he 15th of the month following the month for which allocation is made in Form B. (5) Competent authority shall ensure that Scheduled Commodities are made available to agents in accordance with the roster prescribed by the State Government in this regard. (6) Monthly allocation of food grains, sugar, kerosene and other Scheduled commodities shall be supplied to the agent only and that only on receipt of a certificate, issued by the concerning Vigilance Committee, Administrative Committee duly countersigned by the supply or Senior Supply Inspector or Village Development Officer of the area clearly mentioning that prior month’s allocations have been distributed by the agent in accordance with the rules. (7) Competent authority shall ensure delivery of one copy of allocation order made to fair price shop simultaneously to Gram Panchayat or Nagar Palika or Nagar Nigam as the case may be and Vigilance Committee or any other body nominated for monitoring the functioning of the fair price shops by the State Government. (8) Competent authority and Food Officer shall check the diversion, substitution or adulteration of Scheduled Commodities. 22. Power of entry, search, seizure, etc.:- (1) The Food Officer, the Competent Authority, the Senior Supply Inspector or Supply Inspector may within his jurisdiction with such assistance if any, as he thinks fit:- (a) Require the owner, occupier or any other person in charge of any place, premises,m vehicles or vessels in which he has reason to believe that any contravention of the provisions of this order has been or is being, or is about to be made, to produce any book,account or other documents showing transaction relating to such contravention; (b) Enter, inspect or break open and search any place or premises, vehicle or vessel in which he has reason to believe that any contravention of the provisions of this order has been or is being or is about to be made; (C) Examine and seize any books of accounts and documents which in the opinion of such officer may be useful for or relevant to any proceeding under this order and return such books or accounts and documents to the person from whom they were seized after copies thereof or extracts therefrom as may be considered necessary and certified by the person to be correct have been taken; (d) Seize any Scheduled Commodities, if he is satisfied that there has been contravention of this order. (e) Send a report as provided in Section 6(a) of the Act to the Collector of the District in which such seizure is made and the Collector may thereafter proceed to confiscate the Scheduled Commodities, animal, vehicles vessel or other conveyance so seized in accordance with the provisions of the Act. (2) The provisions of Section 100 of the Code of Criminal Procedure, 1973 ( Act No. 2 of 1974 ) relating to search shall as far as may apply to search under this clause. 23. (2) The provisions of Section 100 of the Code of Criminal Procedure, 1973 ( Act No. 2 of 1974 ) relating to search shall as far as may apply to search under this clause. 23. Power of State Government to authorise any person to inspect etc.:-The State Government may authorise any person other than those referred to in Clause 122 to perform all (sic or ) any of the functions detailed below- (a) to inspect any stocks of Scheduled Commodities, books of accounts or other documents pertaining to any Scheduled Commodities with a view to ensure that no contravention of this order is being made and for the purposes of such inspection enter any premises used or believed to be used for the sale or distribution or storage of Scheduled Commodities; (b) to require any person to make any statement or furnish any information or produce any document or furnish any information or produce any document or article in his possession or under his control relating to the purchase, sale. Distribution or storage of any Scheduled Commodities and any person so required shall comply with such requisition; (C) to inspect any ration card or require any person to give any information in regard to such member of his household as are included in the ration card. 25. Conditions to be observed by the agent: The agent shall observe such conditions as the State Government or the Collector may by an order in writing direct from time to time, in respect of opening of shop maintenance of stocks, supply and distribution of Scheduled Commodities, maintenance of accounts, keeping of the registers filing returns and issue of receipt of Identity Card Holder and other matters. 27. Penalty:- Contravention of provisions of this order shall be liable to punishment in accordance with the orders issued by the State Government from time to time. 28.Appeal:-(1) All appeals shall lie before the concerned Divisional Commissioner who shall hear and dispose of the same may by order delegate his/her powers to the Assistant Commissioner Food for hearing and disposing of the appeal. (2) Any person aggrieved by an order of the Food Officer or the designated authority refusing the issue or renewal of a ration card or cancellation of the ration card may appeal to the Appellate Authority within thirty days from the date of receipt of the order. (2) Any person aggrieved by an order of the Food Officer or the designated authority refusing the issue or renewal of a ration card or cancellation of the ration card may appeal to the Appellate Authority within thirty days from the date of receipt of the order. (3) Any agent aggrieved by an order of the competent authority suspending or cancelling agreement of the fair price shop may appeal top the Appellate Authority within thirty days from the date of receipt of the order. (4) No such appeal shall be disposed of unless the aggrieved person or agent has been given a reasonable opportunity of being heard. (5) Pending the disposal of an appeal the Appellate Authority may direct that the order under appeal shall not take effect until the appeal is disposed of. 31. Provisions of the order to prevail over previous orders of State Government:- The provisions of this order shall have effect notwithstanding anything to the contrary contained in any order made by the State Government before the commencement of this order except as respects anything done, or omitted to be done thereunder before such commencement. 10. From a perusal of para 2 of the Government letter dated 29.7.2004 it is clear that preliminary inquiry has to be held before the authority proceeds to suspend or cancel the fair price shop licence/agreement. In our view such preliminary inquiry in the nature of fact finding inquiry is to assist the concerned competent authority to take action against erring licensee, and if he is prima facie found guilty during inquiry his licence can be suspended. In order to have all the facts and versions of the concerned parties it is always advisable that person holding inquiry should as far as possible ( it means if not otherwise impossible) give notice and also endeavour to collect facts against the person to whom licence has been issued. This will ensure fair and free preliminary inquiry giving balanced view of the entire situation. The aforesaid para 2 of the Government letter dated July 29, 2004 further shows that while passing an order of suspension the authority has to record categorical speaking order in respect of the specific charges which are, prima facie, found established against the licensee on the basis of the preliminary inquiry in order to facilitate and enable the licensee to submit his explanation and supporting documents. 11. 11. A perusal of the impugned order dated 5.9.2006 ( Annexure-1 to the writ petition ) does not indicate as to whether any step was taken to give opportunity to the petitioner and effort was made to collect facts from him when the Naib Tahsildar initiated preliminary inquiry. It is to be noted that in the impugned order no specific details of persons who were allegedly distributed short quantity or who were allegedly charged price more than the prescribed have been disclosed, so as to enable the licensee/petitioner to submit his explanation. In absence of the above, the petitioner cannot be expected to submit his explanation as has been provided in the impugned order. The impugned order also does not disclose that any copy of the inquiry report was supplied to the petitioner. In this view of the matter, we find that the impugned order dated 5.9.2006 is not a speaking order as required by the Government Order dated 29.7.2004 , as such it cannot be sustained and is liable to be set aside. 12. Consequently, the impugned order dated 5.9.2006 (Annexure -1 to the writ petition ) passed by the Sub Divisional Magistrate, Mainpuri is hereby set aside with the direction to restore delivery of food grains to the petitioner. The S.D.M. shall, however, be at liberty to pass fresh order in accordance with law ( keeping in view the observations made above ) after holding necessary inquiry regarding specific charges, if so advised. 13. The writ petition accordingly stands allowed subject to the above observations. 14. No order as to costs. Petition Allowed. ———