JUDGMENT Hon’ble V.K. Shukla, J.—Petitioner, who is fair price shop licensee of Village Begumpur Harel, P.O. Swaidpuri Mahichand, Block Kotwali, Tehsil Nageena, District Bijnor has approached this Court questioning the validity of the order dated 12.12.2007 passed by the Licensing Authority cancelling fair price shop licence of the petitioner and order dated 31.12.2007 passed by the Commissioner, Moradabad Division, Moradabad affirming the aforementioned order in appeal. 2. Brief background of the case is that petitioner claims that he is licensee of fair price shop since last 16 years and further claims that he has been distributing the essential commodities to the card-holder honestly. Complaint was made in respect of functioning of petitioner at “Tehsil Divas”. On the said complaint being made, Block Development Officer was asked to submit report, and report was submitted on 7.12.2007 mentioning therein that he has not lifted the quota in the month of December, 2007 and various card-holders have been shown to have received essential commodities in the month of December, 2007, for the said purpose more than 50 cards were appended. On the said report submitted, recommendation was made for suspending the licence of the petitioner also. Order was passed on 11.12.2007 placing the petitioner’s fair price shop licence under suspension and simultaneously show-cause notice was issued to the petitioner on. After receiving said show-cause notice, petitioner submitted reply on 24-12-2007 taking plea therein that he is victim of village politics and he has been distributing essential commodities in accordance with law, and further each and every charges mentioned in the notice was refuted by him. Thereafter, it appears that licensing authority proceeded to pass order on 31.12.2007 by mentioning that petitioner had not given any satisfactory reply and has not produced any evidence and as such charges are proved. Further licensing authority proceeded to mention that petitioner has also tampered the record and tried to mislead. After the said order has been passed, petitioner preferred appeal and same has also been dismissed on 10.3.2008. At this juncture present writ petition has been filed. 3. Counter-affidavit has been filed on behalf of the State-respondents justifying the action taken therein to which rejoinder affidavit has been filed. 4. Impleadment application has been filed by Sri Mahipal Singh supported by counter-affidavit. 5. After pleadings mentioned above have been exchanged, present writ petition has been taken up for final hearing/disposal with the consent of the parties. 6. 3. Counter-affidavit has been filed on behalf of the State-respondents justifying the action taken therein to which rejoinder affidavit has been filed. 4. Impleadment application has been filed by Sri Mahipal Singh supported by counter-affidavit. 5. After pleadings mentioned above have been exchanged, present writ petition has been taken up for final hearing/disposal with the consent of the parties. 6. Sri S.M. Iqbal Hasan, learned Counsel for the petitioner contended with vehemence that in the present case qua the show-cause notice, specific reply has been submitted by the petitioner and thereafter without making any further inquiry on the issue raised by the petitioner, unwarranted presumption has been drawn, and as such reasonable opportunity has not at all been provided for as such decision making process is bad and, Appellate Forum has also committed same illegality by not adverting too on this aspect of the matter and as such both the orders are liable to be quashed and the writ petition deserves to be allowed. 7. Learned Standing Counsel as well as Sri Mahipal Singh on the otherhand contended that reasonable opportunity has been provided to the petitioner and no interference is warranted. 8. Before proceeding to consider the respective argument relevant provision which cover the field are being looked into. 9. State Government for the purpose of maintaining supply of food grains and other essential commodities and for securing their equitable distribution and availability at fair prices in exercise of the powers conferred under Section 3 of the Essential Commodities Act, 1955 (Act No. 10 of 1955) read with the order of the Government of India, Ministry of Consumer Affairs, Food and Public Distribution, Department of Food and Public Distribution, published under GSR 630(E), dated August 31, 2001 and all other powers enabling him in this behalf, the Governor made order known as Uttar Pradesh Scheduled Commodities Distribution Order, 2004, which was published in U.P. Gazette, Extra Part 4, Section (Kha), dated 20.12.2004. As per clause 4 of the Uttar Pradesh Scheduled Commodities Distribution Order, 2004 fair price shop was to be run through such person and in such manner as the Collector, subject to the directions of the State Government was to decide. Sub-para (2) of Para 4 provides that a person appointed to run a fair price shop under sub-clause (1) shall act as the agent of the State Government. Sub-para (2) of Para 4 provides that a person appointed to run a fair price shop under sub-clause (1) shall act as the agent of the State Government. Sub-clause (3) of Clause 4 provides that a person appointed to run a fair price shop under sub-clause (1) shall sign an agreement, as directed by the State Government regarding running of the fair price shop as per the draft appended to this order before the competent authority prior to the coming with effect of the said appointment. Clause 21 empowers Food Officer to monitor in accordance with the order issued by the State Government and further ensures that monthly allocation of scheduled commodities, shall be supplied only on receipt of certificate, clearly mentioning that prior months allocation have been distributed as per Rules. Clause 22 gives authority of entry, search, seizure. Clause 25, obliges agent to comply with directions issued by State Government or Collector in respect of opening of shop, maintenance of stock, supply and distribution of scheduled commodities, maintenance of accounts, keeping of register, filing returns and issue and receipt of card-holders and other matter. Clause 26, puts restriction on transfer of agency. Clause 27 deals with punishment for contravention, in accordance with orders issued by State Government. Clause 28 confers right of Appeal. Clause 29, is saving clause for action taken under this order. Clause 30 is again saving clause, which saves action taken under repealed 1990 order. Clause 31 contains non-obstonte clause, dealing with overriding effect. 10. Uttar Pradesh Scheduled Commodities Distribution Order, 2004 in context of Government Order dated 29.7.2008 has been subject-matter of interpretation before the Division Bench in the case of Harpal v. State of U.P. & Ors. in Civil Misc. Writ Petition No. 58470 of 2005 and the view taken has been that both the Government Orders as well as provision of Distribution Order are still co-existing and decision will have to be taken keeping in view of Government Order dated 29.7.2004 by the concerned authority on the basis of the inquiry report, by speaking order on objective consideration of record. Relevant extract of said judgment is being quoted below : Þ4- fuyfEcr dh x;h nqdkuksa ds fo:) tk¡p dh dk;Zokgh vf/kdre ,d ekg esa vfuok;Z :i ls iwjh dh tk;sxh rFkk tk¡p eas lEcfU/kr nqdkunkj dks lquokbZ dk iwjk ekSdk fn;k tk;sxkA lEcfU/kr nqdkunkj dk ;g nkf;Ro gksxk fd og tk¡p esa viuk iwjk lg;ksx ns rkfd tk¡p dk dk;Z tYnh ls tYnh iwjk fd;k tk lds rFkk fu;qfDr Ákf/kdkjh }kjk Ádj.k esa xq.k nks"k ds vk/kkj ij vfUre fu.kZ; fy;k tk ldsA ;fn nqdkunkj }kjk tk¡p esa lg;ksx ugha fn;k tk jgk gks vkSj tk¡p esa foyEc djus dk Á;kl fd;k tk jgk gks rks nqdkunkj dks bl vkk; dk Hkh uksfVl tkjh fd;k tk;sxk vkSj viuk i{k j[kus dk vfUre volj Ánku fd;k tk;sxkA 5- tk¡p dh dk;Zokgh vf/kdre ,d ekg esa iw.kZ djds fu;qfDr Ákf/kdkjh }kjk Ádj.k esa vfUre fu.kZ; fy;k tk;sxk vkSj xq.k nks"k ds vk/kkj ij ,d ÞLihfdax vkMZjÞ tkjh fd;k tk;sxkA bl vknsk esa ;g Li"V mYys[k gksuk pkfg, fd lEcfUèkr nqdkunkj dks lquokbZ dk volj fn;k x;k vkSj mls lquk x;kA ;fn nqdkunkj us tk¡p esa lg;ksx ugha fd;k gks vkSj lquokbZ ds volj dk tkucw>dj mi;ksx u fd;k gks rks vfUre vknsk esa bl ckr dk Hkh iwjk mYys[k gksuk pkfg, fd nqdkunkj dks volj iznku fd;k x;k rFkk vfUre uksfVl fn;k x;k ijUrq mlus tkucw> dj volj dk mi;ksx ugha fd;k vkSj tk¡p esa lg;ksx ugha fd;kAÞ Paragraphs 4 and 5 of the Government Order provides that the shops where the licence of fair price shop dealer has been suspended enquiry must be completed within a period of one month and in the enquiry the licensee should be given opportunity of hearing and if the licensee tries to delay the enquiry then a notice be given to him fixing a last date of enquiry and thereafter final speaking order on merits would be passed. The provisions of paragraphs 2, 4 and 5 are mandatory in nature and its non-compliance would vitiate the order passed by the concerned authority. Paragraph 7 had fixed a period of one month for enquiry and another month for passing cancellation order and for appointment of new dealer. It further provides that where a fair price shop licence has been suspended/cancelled the fair prices shop will be attached for a maximum period of two months. Paragraph 7 had fixed a period of one month for enquiry and another month for passing cancellation order and for appointment of new dealer. It further provides that where a fair price shop licence has been suspended/cancelled the fair prices shop will be attached for a maximum period of two months. The Additional Chief Standing Counsel has urged that the Uttar Pradesh Scheduled Commodities Distribution Order, 2004 (in brief the 2004 Order) which was notified and published on 20.12.2004 has superseded the Government order dated 29.7.2004. The argument is devoid of any merits. It is necessary to extract clause 30 and 31 of 2004 : order as under”. "30. Savings.—Any act performed under the provisions of the Uttar Pradesh Scheduled Commodities Distribution Order, 1999, which is hereby repealed prior to commencement of this order shall be deemed to have been validly performed under the provisions of this order. 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.” From a reading of clause 30 it is clear that the Uttar Pradesh Scheduled Commodities Distribution Order, 1990 was superseded and repealed. Clause 31 of 2004 Order states that it will have effect irrespective on any thing contrary to it contained in any earlier order issued by the State Government. The 2004 Order was issued by the State Government for maintaining the supplies of food grains and other essential commodities and for securing their equitable distribution and availability at fair prices. Its Clause 21 is concerned with monitoring of fair price shops by the food officer and he was to make regular inspections. Clause 22 of the Order gave power to the Food Officer and other officers the power of entry, search and seizure and clause 23 gave power to the State Government to authorise any person in respect to the stocks of scheduled commodities other than the officers mentioned in Clause 22. So far as the maintenance of supply of food grains and other essential commodities and their distribution and availability at fair price shop was concerned the 2004 Order provided stringent methods to deal with the erring licensees of fair price shops. So far as the maintenance of supply of food grains and other essential commodities and their distribution and availability at fair price shop was concerned the 2004 Order provided stringent methods to deal with the erring licensees of fair price shops. But the 2004 Order did not provide any procedure for suspension/cancellation of the licences or agreement of fair price shop licensees. The 2004 Orders did not lay down any procedure as to how and in what manner the licence/agreement of a fair price shop licensee/agent has to be suspended or cancelled nor any time frame has been provided. On the other hand, the Government order dated 29.7.2004 prescribes the procedure for taking recourse to suspension/cancellation by the officers and fixes a time frame for taking action against the licensees. The Government order dated 29.7.2004 does not contain any provision which is contrary to 2004 Orders. The 2004 Order has not superseded the Government order dated 29.7.2004. The Government Order dated 29.7.2004 and 2004 Order dated 20.12.2004 operate in different fields. We are of the considered opinion that the Government order dated 29.7.2004 and the 2004 Order dated 20.12.2004 are valid and are still in force and are applicable in the State of Uttar Pradesh. 11. Apart from this in term of sub-clause (3) of Clause 4 of Uttar Pradesh Scheduled Commodities Distribution Order, 2004 there is statutory agreement and as per the terms and conditions of the statutory agreement, in para 22 it has been mentioned that in the departmental action which will be taken, opportunity of hearing has to be afforded and thereafter decision has to be taken. Para 22 of the aforementioned statutory agreement is being extracted below : Þ1- ;fn vkSj tc fdlh ,rn~ iwoZ mfYyf[kr krksZa vkSj ÁfrcU/kksa esa ls fdlh dk Hkh vfHkdrkZ }kjk mYy?ku fd;k tk; vFkok@vkSj vuqikyu u fd;k tk; rks l{ke Ákf/kdkjh] fyf[kr :i ls Li"Vr% dkj.k crkrs gq, vfHkdrkZ }kjk tek ÁfrHkwfr dh jkfk vius foosdkuqlkj vkafkd vFkok lEiw.kZ :i ls kklu ds i{k esa tCr dj ldrk gS vFkok bl vuqcU/k i= dks fuyfEcr djrs gq, vfHkdrkZ ds fo:) vxzsrj tk¡p ,oa foHkkxh; dk;Zokgh la;ksftr djkdj ÁfØ;k esa yk ldrk gS vkSj foHkkxh; dk;Zokgh dh ÁfØ;k esa vfHkdrkZ dks mlds fo:) lk{;ksa dk voyksdu djus dk volj Ánku djrs gq, vfHkdrkZ dks viuk i{k ÁLrqr djus dk volj Ánku djrs gq, xq.kkoxq.k ds vk/kkj ij fopkjksijkUr vfHkdrkZ dk vuqcUèk i= fujLr dj ldrk gS rFkk lEiw.kZ ÁfrHkwfr jkfk kklu ds i{k esa tCr dj ldrk gSA 2- ;fn fdlh Ádj.k esas vfHkdrkZ dh dsoy ÁfrHkwfr dh gh jkfk vkafkd vFkok iw.kZ :i ls l{ke izkfèkdkjh }kjk tCr dh tkrh gS rks tCr izfrHkwfr jkfk dh izfriwfrZ vfHkdrkZ }kjk dj fn;s tkus ds mijkUr gh vfHkdrkZ }kjk iqu% nqdku dk lapkyu fd;k tk ldsxkA 3- ,sls fdlh Hkh vknsk ds fo:) vfHkdrkZ }kjk mŸkj Ánsk vuqlwfpr oLrq forj.k vknsk 2004 ds Ákfo/kku 28 ds vUrxZr vihy Ákf/kdkjh ds le{k fuèkkZfjr vof/k ds vUnj vihy nkf[ky dh tk ldsxhAÞ 12. Perusal of aforementioned provision quoted above would go to show that as per agreement entered in between the State Government and Agent that if there is any breach of conditions and restrictions, then departmental action is feasible and based on the evidence available against him after providing opportunity of hearing to put forth, decision has to be taken. This particular provision assures that agent has to be given fair treatment before action is taken for cancellation of his agreement. 13. On the touchstone of these provisions, now fact of the present writ petition are being adverted to. In the present case show-cause notice was issued to the petitioner on 11.12.2007. While passing order of suspension, petitioner was asked to submit his reply within period of one week. 13. On the touchstone of these provisions, now fact of the present writ petition are being adverted to. In the present case show-cause notice was issued to the petitioner on 11.12.2007. While passing order of suspension, petitioner was asked to submit his reply within period of one week. It has also been specifically mentioned that in case petitioner intends to produce any written evidence or oral evidence then he can get the same on any working day and in case no written reply is furnished, then it would be presumed that petitioner has nothing to say in the matter and ex parte decision would be taken. Petitioner submitted his reply on 24.12.2007. Petitioner made categorical averment in respect of complaint made at item Nos. 5, 6 and 7 by mentioning that these card-holders were not at all in circulation. Petitioner also gave specific reply in respect of charges mentioned at item Nos. 1 and 27, and categorical mention was made that all these card-holders have not collected the kerosene oil in the month of December, 2007 and neither entry has been made in the stock register and in December, 2007 entry has been made by the card-holder himself. Reply to the similar effect was given by the petitioner qua other charges. In respect of item Nos. 25, 31 and 57 categorical mention was made that all these persons are dead and as such there is no occasion to distribute the kerosene oil to them. After this reply had been submitted, record in question reflects that Licensing Authority proceeded to mention that reply, which has been submitted, is not satisfactory and as such entire charges are proved. Not only this presumption was also drawn that from perusal of the stock register, it was reflected that Stock was available on 10.12.2007 and on 11.12.2007 even opening has not been shown and as such fictitious entries are there. This particular charge was not at all even mentioned in the show-cause notice and same has been made foundation and basis for non-suiting claim of petitioner and qua the same petitioner ought to have been confronted so that adequate reply could have been submitted. Even otherwise petitioner had made specific contention that since 11.12.2007 his fair price shop was already suspended and as such there was no occasion to make any entry. Even otherwise petitioner had made specific contention that since 11.12.2007 his fair price shop was already suspended and as such there was no occasion to make any entry. Licensing Authority in the present case, as per fact of the reflected after receipt of the reply has not undertaken any exercise to verify the genuineness of the reply which has been submitted by the petitioner and by merely mentioning that reply submitted by the petitioner is not satisfactory, has proceeded to pass order. Fact of the matter is that in the present case inquiry in question has not at all been done qua the reply submitted by petitioner. Once show-cause notice was issued, reply was submitted to the same, then concerned Sub-Divisional Magistrate ought to have made inquiry into the matter and for the said purpose called the petitioner also. Petitioner was superficially asked by means of show-cause notice to submit his explanation and it was specifically mentioned that in case he intends to produce defence in his favour either oral or documentary, then it can be got done on any working day. For said purpose, date, time and place ought to have been fixed so that matter could have been thrashed up properly and reasonable opportunity of hearing was afforded to the petitioner and then on the basis of material available, decision ought to have been taken. In the present case decision taken cannot be termed to be fair decision as after submission of the reply, no exercise whatsoever has been taken and merely saying that reply submitted by the petitioner is not satisfactory, as such both the Licensing Authority as well as Appellate Authority have committed material illegality in passing the order impugned. 14. Consequently, orders dated 31.12.2007 and 10.3.2008 are hereby quashed and set aside. However, Sub-Divisional Magistrate, Nageena, District Bijnor is directed to conclude the inquiry in accordance with law preferably within period of eight weeks from the date of production of certified copy of this order, after affording opportunity of hearing to petitioner. 15. With these observations, writ petition is allowed. 16. No order as to cost. ————