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2010 DIGILAW 683 (ALL)

ABU BAKER v. STATE OF U. P.

2010-02-23

B.K.NARAYANA

body2010
JUDGMENT Hon’ble Bala Krishna Narayan, J.—Heard learned counsel for the petitioner and learned Standing Counsel for respondents. 2. The petitioner’s fare price shop licence was suspended by respondent No. 3 by order dated 23.12.2005 on the allegations that the petitioner had contravened the provisions of U.P. Scheduled Commodities Distribution Order, 2004 by charging excess amount for the essential commodities from the BPL card holders and Antodaya card holders. By the same order, the petitioner was also required to show cause as to why his agreement be not cancelled. The petitioner filed his reply to the show cause notice denying the allegations made against him and alongwith his reply, the petitioner also filed documents before respondent No. 3 for showing that the grounds on which the petitioner’s fair price shop agreement was sought to be cancelled were unfounded. After receiving petitioner’s reply, respondent No. 3 recorded the statements of some of the BPL and Antodaya card holders behind the back of the petitioner and without affording him any opportunity to cross examine the said witness and without furnishing him with the copies of their statements by his order dated 7.2.2006, cancelled the petitioner’s fair price shop holding that the allegations made against the petitioner were proved. Against the order of respondent No. 3 petitioner filed an appeal before the respondent No. 2 which was registered as Appeal No. 153-A of 2004 and dismissed by him by his order dated 23.12.2005. Learned counsel for the petitioner submitted that the cancellation of the petitioner’s fair price shop agreement by the respondent No. 3 on the basis of the statement of the witness recorded behind the back of the petitioner and without the copies of the statements of the witnesses being furnished to him and also without giving him any opportunity to cross examine the witness who had deposed against him was not sustainable, action of the respondents No. 3 being in contravention of principles of natural justice. He further submitted that the order of respondent No. 3 was challenged by the petitioner before the respondent No. 2 specifically on the aforesaid ground. However, the respondent No. 2 dismissed the petitioner’s appeal without considering and recording any finding on the aforesaid issue raised before him. 3. He further submitted that the order of respondent No. 3 was challenged by the petitioner before the respondent No. 2 specifically on the aforesaid ground. However, the respondent No. 2 dismissed the petitioner’s appeal without considering and recording any finding on the aforesaid issue raised before him. 3. In support of his submissions learned counsel for the petitioner placed reliance upon decision of this Court in Raj Pal Singh v State of U.P. and others, 2008(26) LCD 931; National Building Construction Corporation v S. Raghunathan, (1998) 7 SCC 66 ; and D.K. Yadav v. JMA Industries, (1993) 3 SCC 259 . 4. Learned counsel for the petitioner next submitted that the failure of the appellate authority to redeem the illegality committed by the respondent No. 3, licensing authority has rendered the order of the respondent No. 2 is also liable to be set aside. 5. Learned Standing Counsel submitted that the impugned orders does not suffer from any illegality or infirmity warranting any interference by this Court. 6. I have considered the submissions made by learned counsel for the parties and perused the record of the writ petition as well as the impugned orders. A close reading of the order dated 23.12.2005 passed by respondent No. 3 shows that the petitioner’s fair price shop agreement was cancelled on the ground that he was charging excess amount from BPL and Antodaya card holders for the essential commodities meant for sale through public distribution system at a fixed price. The order further shows that respondent No. 3 had recorded the statements of several BPL and Antodaya card holders and while holding that the allegations made against the petitioner were proved he had relied upon the statements of the said witnesses. There is no material on record indicating either the petitioner was given any opportunity to cross-examine the witness who had deposed against him or the copies of the statements of witnesses so recorded were furnished to him. Thus what follows from the above discussion is that the petitioner has been penalised on the basis of the statements of Antodaya and BPL card holders recorded behind his back although neither the copies of the statements of the aforesaid witnesses were furnished to the petitioner nor he was given any opportunity to cross-examine the witness so examined. 7. Thus what follows from the above discussion is that the petitioner has been penalised on the basis of the statements of Antodaya and BPL card holders recorded behind his back although neither the copies of the statements of the aforesaid witnesses were furnished to the petitioner nor he was given any opportunity to cross-examine the witness so examined. 7. The Hon’ble Supreme Court in iota of cases has reiterated that a person who is put to any harm, he shall first be afforded adequate opportunity of showing cause. In D.K. Yadav (supra) the Supreme Court while having emphasis on affording opportunity by the authority which has the power to take punitive or damaging action held that orders affecting the civil rights or resulting consequences would have to answer the requirement of Article 14. The Hon’ble Apex Court concluded as under : “The procedure prescribed for depriving a person of livelihood would be liable to be tested on the anvil of Article 14. The procedure prescribed by a statute or statutory rule or rules of orders affecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. Article 14 has a pervasive procedural potency and versatile quality equalitarian in its soul and principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable and not arbitrary, fanciful or oppressive.” 8. In National Building Construction Corporation (supra), it was observed by the Apex Court that a person is entitled to judicial review, if he is able to show that the decision of the public authority deprived him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he is informed the reasons for withdrawal and the opportunity to comment on such reasons. 9. This Court in the case of Rajpal Singh (supra) again held that where fair price shop licence of a dealer is cancelled by placing reliance on the report of the Supply Inspector and the copy of the report is not furnished to the dealer, such an order is in contravention of principles of natural justice and is liable to be set aside. 10. 10. In view of the settled legal position, I have no hesitation in holding that the cancellation of petitioner’s fair price shop agreement by respondent No. 3 in contravention of principles of natural justice cannot be sustained. Since the appellate authority failed to rectify the error committed by the Licensing authority, respondent No. 3 the order of the appellate authority is also liable to be set aside alongwith the order of the licensing authority. 11. For the aforesaid reasons, the writ petition is allowed. The order dated 23.12.2005 passed by respondent No. 3 (Annexure 8 to the writ petition) as well as the appellate order dated 18.1.2007 passed by respondent No. 2, (Annexure 16 to the writ petition) are hereby quashed. Respondent No. 3 may be at liberty to pass a fresh order in the matter after complying with the principles of natural justice. ————