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2012 DIGILAW 2956 (ALL)

Shiv Karan Lal v. State of U. P. and Others

2012-12-19

DEVENDRA KUMAR ARORA

body2012
Devendra Kumar Arora, J.— Heard learned counsel for parties and perused the record. By means of present writ petition, the petitioner has prayed for a writ in the nature of certiorari for quashing of the order dated 02.11.2010, passed by the Additional Commissioner, Lucknow Division, Lucknow and the order dated 19.11.2009, passed by the Up Zila Adhikari, Bilgram, Hardoi, as contained in Annexures No. I & II to the writ petition, after summoning the original thereof from the opposite parties. The petitioner further prays for a writ in the nature of mandamus commanding the opposite parties to allow the petitioner to run the fair price shop and not to allot his fair price shop in favour of any other person. Facts of the case, in nutshell, are that in the year 1989, petitioner was granted license to run the fair price shop, which he had been running without any complaint and to the satisfaction of the villagers of the locality and the authorities concerned. A complaint was made on 18.8.2009 on behalf of the villagers of village Fattepur Chauguva against the petitioner that he did not make regular distribution of the food commodities. Another complaint was made to the effect that the petitioner had not distributed the food grains for the month of October, 2009 on due dates.. On such complaints, the District Supply Officer made an enquiry on 29.9.2009 and 12.10.2009 and submitted the Enquiry Report on 13.10.2009. From perusal of the Enquiry Report, it reveals that following charges were levelled against the petitioner: (i) that on the date of inspection dated 12.10.2009 at about 2 p.m., the shop in question was found closed; (ii) that by that date the food grains for the month of October, 2009 was not distributed in village Jyuli Hasanpur and Nekpur Yogwan (iii) that 8 BPL card-holders gave statement that the petitioner did not give them the food grains and it was also not found entered in their ration cards (iv) that the Antyoaday Card Holders of the village mentioned in Column no. 3 in their statements said that they were not given food grains for the month of July & August, 2009 and (5) that the petitioner did not submit his reply to the letter dated 5.10.2009 by which his explanation was asked for. 3 in their statements said that they were not given food grains for the month of July & August, 2009 and (5) that the petitioner did not submit his reply to the letter dated 5.10.2009 by which his explanation was asked for. On 22.10.2009, a show cause notice was issued by the Up Zila Adhikari, Bilgram, Hardoi (Opposite Party No. 4) to the petitioner to show cause with respect to the alleged irregularities in distribution of the scheduled commodities, as mentioned in the said notice. The license/ agreement of the petitioner's fair price shop was also suspended with immediate effect vide notice/order dated 22.10.2009 (Annexure No. III) and the petitioner was directed to submit his reply within 15 days. The petitioner submitted his reply 27.10.2009 (Annexure No. IV) and denied all the charges levelled against him. Petitioner also filed affidavits of 18 BPL/ Antyodaya card holders of the village and the statements signed by the Village Pradhan and the members of Gram Panchayat, certifying that distribution of the petitioner was satisfactory and the card-holders had no grievance against the petitioner and they recommended to restore the fair price shop of the petitioner. However, the Up Ziladhikari, Bilgram, Hardoi cancelled the petitioner's license/ agreement of the fair price shop vide order dated 19.11.2009, holding that the petitioner did not submit the affidavits/ statements of the card holders of Village Fatteypur Chauguva and the statements/ affidavits of the card holders of village Hasanpur Jyoli were not reliable. The petitioner preferred appeal no. 857/2009-10, Shiv Karan Lal vs. Up Ziladhikari, Bilgram before the Addl. Commissioner, (Food), Lucknow Division, Lucknow on the grounds that the order dated 19.11.2009 and the entire proceedings of the cancellation were illegal and against the evidence on record as due to petitioner's illness there was delay in distribution of food grains, which was made on 14th 15th 16th & 17.10.2009 in presence of the Supply Inspector and the Supply Inspector found that the stock was complete as per the stock register. Further, there was no charge of black marketing and only the charge was of delayed distribution of food-grains. Further, there was no charge of black marketing and only the charge was of delayed distribution of food-grains. So far as the charge of not distribution of food-grains for the months of July and August, 2009 to some of the card holders is concerned, the petitioner filed affidavits of 18 card-holders who denied that any enquiry was made from them or they made the alleged statements as mentioned in the show cause notice. It is also mentioned in the affidavits that they were satisfied with the distribution of food-grains made by the petitioner. The Addl. Commissioner admitted the appeal vide order dated 8.12.2009 (Annexure No. VII) with the direction that if any allotment is made of the fair price shop during pendency of appeal, the same will be made as temporary arrangement and will be subject to the decision of the appeal. However, subsequently the Appellate Authority without appreciating the explanation of the petitioner, dismissed the appeal vide impugned order dated 02.11.2010 and affirmed the order passed by the Up Ziladhikari, Bilgram, on the ground that the petitioner did not file the affidavit or statement of any card-holder of village Fatteypur Chauguwan. Hence, this writ petition. Submission of learned counsel for the petitioner is that the Appellate Authority failed to consider the explanation submitted by the petitioner that due to illness the distribution of food-grains was not timely made although he had filed Medical Certificate in support of his contention. The distribution of the food-grains was made to the card-holders in presence of the Supply Inspector and the stock was found as per the stock register. Further submission is that the petitioner was not afforded any opportunity of personal hearing before passing the impugned order of cancellation of license of fair price shop. Further submission is that the petitioner was neither supplied the copy of complaint nor he was given due opportunity of hearing. The petitioner's detailed reply to show cause notice and the affidavits of eighteen BPL/ Antyodaya Card Holders of the village have also not been given due consideration by the authorities. The Up Ziladhikari, Bilgram while considering the case of petitioner did not give any reason as to why and in what respects the affidavits of the card-holders were not reliable. The petitioner's detailed reply to show cause notice and the affidavits of eighteen BPL/ Antyodaya Card Holders of the village have also not been given due consideration by the authorities. The Up Ziladhikari, Bilgram while considering the case of petitioner did not give any reason as to why and in what respects the affidavits of the card-holders were not reliable. Learned counsel further submitted that if the reply of the petitioner and the evidence adduced by him had been considered in correct prospective, the charges levelled against the petitioner could not have been sustained. The BPL Card-holders have filed their affidavits in favour of the petitioner that they were satisfied with the distribution of foodgrains and that they had not made any complaint against the petitioner. Learned counsel for the petitioner has placed reliance on the judgment of this Court passed in Writ Petition No. 1436 (MS) of 2008, Sita Devi vs. Commissioner, Lucknow and others dated 14.9.2010, reported in 2011 (29) LCD 626 in which it has been held that non supply of the copy of preliminary enquiry report is violative of the principles of natural justice. It has been further held that a person appointed to run the fair price shop, as an interim arrangement during pendency of appeal, has no locus standi. I have considered the rival submissions of learned counsel for parties and gone through the record. It is admitted position that the petitioner was granted license to run the fair price shop by the competent authority in the year 1989 which remain continued with him till its cancellation. The license of his fair price shop was suspended vide order dated 22.10.2009. After inquiry, petitioner's license to run the fair price shop was also cancelled vide order dated 19.11.2009. From perusal of the charges it also reveals that no specific charge has been levelled and the charges are vague in nature and without there being any supportive documents. Further petitioner was neither supplied the copy of complaint nor he was given due opportunity of hearing. The petitioner's detailed reply to show cause notice and the affidavits of eighteen BPL/ Antyodaya Card Holders of the village have also not been given due consideration by the authorities which indicates that the petitioner did not commit any irregularity in distribution of food-grains. The petitioner's detailed reply to show cause notice and the affidavits of eighteen BPL/ Antyodaya Card Holders of the village have also not been given due consideration by the authorities which indicates that the petitioner did not commit any irregularity in distribution of food-grains. Normally, this Court does not interfere in the matter where the finding of fact is given by the authorities, but the present case is different as no specific finding with regard to any particular irregularity committed by the petitioner in distribution has been recorded by the authorities. Merely saying that the distribution of food-grains was delayed, would not be sufficient for passing an order of cancelling the license of the petitioner's fair price shop. The valuable rights of the petitioner flow from the license which has been given in his favour and in case the same is to be cancelled or withdrawn, there should be sufficient reason for the same. In the case of B. D. Gupta Vs. State of Haryana, reported in AIR 1972 SC 1472 the Hon'ble Apex Court has held that where a delinquent is given a show cause notice, it has to be considered objectively and not subjectively. The authority is under an obligation to specify as which part of the explanation of the delinquent is not acceptable and for what reason other it would be a case of non-application of mind or not recording the reasons. Further, in the case of U.P. State Warehousing Corporation Vs. Chandra Kiran Tyagi, reported in AIR 1970 SC 1244 , the Hon'ble Apex Court held that in a given case the Inquiry Officer may collect certain information during the inquiry behind the back of the delinquent. Unless it is disclosed to him and the delinquent is given an opportunity to explain, the said material cannot be relied upon. The Division Bench of this Court in the case of M/s Mahatma Gandhi Upbhokta Sahkari Samiti vs. State of U.P. and others reported in 2001 (19) SCD 513, held that when the report of enquiry has been relied upon by the authorities concerned, that report has to be furnished to the person who is effected by the same. The para-3 of the judgment reads as under:- "3. It is the contention of the writ petitioner that no opportunity of hearing was given to the petitioner. The para-3 of the judgment reads as under:- "3. It is the contention of the writ petitioner that no opportunity of hearing was given to the petitioner. That apart the petitioner was not supplied with the copy of inquiry report conducted by Sub-Divisional Magistrate dated 01.11.2000, upon which reliance was placed in the impugned order and that itself violates principles of natural justice. It appears to us from the impugned order itself that the concerned authority has taken into consideration the inquiry report of Sub-Divisional Magistrate dated 01.11.2000 but no copy of the same has been supplied to the writ petition which is essential requirement for following the principles of natural justice. It is well settled that when report of the inquiry has been relied upon by the disciplinary authority, that report has to be furnished to the person who is effected by the same. In that view of the matter, we are of the view that the impugned order suffers from the violation of the Principles of Natural Justice." In the case of Rajpal Singh v. State of U.P. and others reported in 2008 (16) LCD 891, it has been held by this Court that non-furnishing of the inspection report of the Supply Inspector which was relied upon for cancellation of the licence, amounts to violation of principles of natural justice, hence, the order of cancellation as well as the appellate order was not sustainable in the eyes of law. In the case of Dori Lal v. State of U.P. and others reported in 2006 (24) LCD 1121, it has been held that the order of cancelling the licence passed without providing copy of the resolution of the village Panchayat as well as the enquiry report, if any and without being afforded opportunity of submitting explanation and hearing, amounts to gross violation of principle of natural justice and, hence, the same deserves to be quashed. The similar view has been expressed in Maiku Lal vs. State of U.P. and others reported in 2009 (27) LCD 1192, the observation in paras-13 and 14 reads as under:- "13. The similar view has been expressed in Maiku Lal vs. State of U.P. and others reported in 2009 (27) LCD 1192, the observation in paras-13 and 14 reads as under:- "13. The submission of the counsel for the petitioner finds force that the impugned order of cancellation has been passed on the basis of the inquiry report submitted by the Supply Inspector, the copy of which was not suppled to the petitioner due to which the petitioner was denied the proper opportunity of defence and it amounts to violation of principle of natural justice. 14. From perusal of the record, it is evident that the impugned order of cancellation dated 29.08.2001 was passed merely considering the reply submitted to the show cause notice by the petitioner and no opportunity of hearing was provided to the petitioner. The learned Commissioner while deciding the appeal filed by the petitioner against the order of cancellation of the Fair Price Shop did not properly consider the fact that the enquiry report which was the main basis for cancellation of the licence of Fair Price Shop was not provided to the petitioner and the petitioner did not get adequate opportunity of defence before passing of the impugned order dated 08.10.2001." 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 vs. J.M.A. Industries; (1993) 3 SCC 259 the Hon'ble Supreme Court while laying 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 civil consequences would have to answer the requirement of Article 14. The 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 or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. The 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 or 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 sole 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 of oppressive." In National Building Construction Corporation v. S. Raghunathan; (1998) 7 SCC 66 , 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 affected 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." As has already been discussed above, in the present case the charges against the petitioner were absolutely vague. The reply submitted by the petitioner was not considered while passing the order, either by the Up-Zila Adhilari or by the appellate authority and merely saying that there were irregularities, without specifying any kind of irregularity and without holding proper enquiry, would not be a ground for cancelling the licence of the petitioner. The action of the opposite party of passing the impugned order without supplying the copy of the preliminary enquiry report while proving the charges against the petitioner on the basis of said enquiry report is hit by the grave legal infirmity and the whole action of the opposite party no.2 is in great disregard of the principles of natural justice. In view of the above, the order of cancellation as well as the order passed by the appellate authority are not sustainable in the eyes of law. Accordingly, the writ petition is allowed. The impugned orders dated 2.11.2010, passed by the Addl. Commissioner, Lucknow Division, Lucknow and the order dated 19.11.2009, passed by the Up Zila Adhikari, Bilgram, Hardoi (opposite party no. 4) are quashed. Accordingly, the writ petition is allowed. The impugned orders dated 2.11.2010, passed by the Addl. Commissioner, Lucknow Division, Lucknow and the order dated 19.11.2009, passed by the Up Zila Adhikari, Bilgram, Hardoi (opposite party no. 4) are quashed. The license of the petitioner shall be restored forthwith without any delay and the opposite parties are directed to allow the petitioner to run the fair price shop in question. However, the present order will not prevent the opposite parties to take appropriate action in accordance with law. There shall be no order as to costs. _____________