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2018 DIGILAW 264 (ALL)

KAMLESH SINGH v. STATE OF U. P.

2018-02-01

RAJESH SINGH CHAUHAN

body2018
JUDGMENT : Hon'ble Rajesh Singh Chauhan,J. 1. Heard Sri Pradeep Kumar Singh 'Vats', learned counsel for the petitioner and Sri Manish Pandey, learned counsel for the State-respondents. 2. The petitioner has assailed the order dated 30.9.2011 passed by the District Supply Officer, Ambedkar Nagar whereby the license of the fair price shop of the petitioner has been cancelled and the security amount has been forfeited in favour of the State. The petitioner has also assailed the order dated 20.11.2013 passed by the Commissioner (Administration), Faizabad Division, Faizabad whereby the statutory appeal of the petitioner which was filed against the order dated 30.9.2011 has been rejected. 3. The main ground to assail the aforesaid orders are that the District Supply Officer has passed the order dated 30.9.2011 without affording opportunity of hearing to the petitioner and without even providing the inquiry report, the order of suspension of the fair price shop and also show cause notice. As per the learned counsel for the petitioner the petitioner came to know about the aforesaid document on 16.10.2011 and by that time the order of cancellation dated 30.9.2011 had been passed. The petitioner has further submitted that the Appellate Authority did not consider the submissions of the petitioner and rejected the appeal of the petitioner without application of mind. 4. The license of the fair price shop of Gram Panchayat Shyampur, Allaupur, Block Jahangiraganj, Tehsil Alapur, District Ambedkar Nagar was allotted to the petitioner in the year 1991. 5. On the direction of District Supply Officer, Ambedkar Nagar, the Supply Officer, Ambedkar Nagar carried out inspection of the fair price shop of the petitioner on 6.9.2011 and submitted the inspection report to the District Supply Officer on 7.9.2011. 6. On the basis of aforesaid inspection report dated 7.9.2011, the District Supply Officer has suspended the fair price shop license of the petitioner on 12.9.2011 and called the explanation from the petitioner till 15.9.2011. The stock and sale register for four months till 15.9.2011 was also called. Vide para 6 of the writ petition the petitioner has categorically submitted that he has not been provided the suspension order dated 12.9.2011. The aforesaid fact has not been disputed in para no. The stock and sale register for four months till 15.9.2011 was also called. Vide para 6 of the writ petition the petitioner has categorically submitted that he has not been provided the suspension order dated 12.9.2011. The aforesaid fact has not been disputed in para no. 7 of the counter affidavit, meaning thereby the copy of inquiry report as well as suspension order was not provided to the petitioner till 16.10.2011, the date when the petitioner came to know about those documents. 7. The learned counsel for the petitioner has drawn the attention of this Court towards the impugned order dated 30.9.2011 passed by the District Supply Officer, Ambedkar Nagar wherein it has been indicated that the petitioner was provided only three days' time to submit his explanation and to produce the stock and sale register. The learned counsel for the petitioner has also drawn the attention of this Court towards the Government Order dated 29.7.2004 (Annexure no. 5 to the writ petition) whereby the detailed procedure has been prescribed for suspension and cancellation of the license of fair price shop in question. Para 4 of the aforesaid Government Order categorically provides that the licensee of the fair price shop in question would be provided ample opportunity of hearing and inquiry would be completed within a period of one month. In the instant case the inquiry was completed within one day i.e. inspection was carried out on 6.9.2011 and inspection report was submitted on 7.9.2011. Not only the above, the fair price shop in question was suspended on 12.9.2011 and petitioner was directed to submit his explanation and produce the stock and sale register by 15.9.2011, meaning thereby only three days time was provided to the petitioner to do all needful. The aforesaid admitted fact is unwarranted and violative of para 4 of the Government Order dated 29.7.2004. 8. Since the petitioner came to know that some inquiry is going on against him, therefore, he submitted his reply and also copy of the stock and sale register before the District Supply Officer on 22.10.2011 under the bonafide impression that his explanation would be considered sympathetically. The petitioner has submitted the aforesaid submission vide para no. 9 of the writ petition which was not disputed in the counter affidavit vide para no. 10 of the counter affidavit. 9. The petitioner has submitted the aforesaid submission vide para no. 9 of the writ petition which was not disputed in the counter affidavit vide para no. 10 of the counter affidavit. 9. As per learned counsel for the petitioner the petitioner approached the concerning authority to know the fate of his explanation , then he came to know that one order dated 30.9.2011 has already been passed whereby the license of the fair price shop in question has been cancelled. The said order was provided to the petitioner in the last week of October, 2011. 10. The petitioner thereafter filed an appeal before the Commissioner, Faizabad Division, Faizabad on 12.4.2012 ventilating his bonafide grievance seeking redressal thereof. The petitioner has enclosed the copy of appeal as Annexure no. 6 to the writ petition wherein the petitioner has categorically submitted that the impugned order dated 30.9.2011 has been passed in utter violation of principles of natural justice and he has not been afforded ample opportunity of hearing. He also submitted that he was not even provide the relevant material evidence, suspension order, inquiry report etc. and the impugned order dated 30.9.2011 has been passed in a sheer illegal, arbitrary and unwarranted manner. As per the learned counsel for the petitioner the Appellate Authority did not consider any of the bonafide submissions of the petitioner and passed a mechanical order without appreciating the factual and legal matrix of the issue. 11. The petitioner has categorically submitted in para 15 of the writ petition that he has not been provided the copy of the inquiry report, suspension order of fair price shop etc. Para 15 of the writ petition is being reproduced herein below : "15. That it is important to mention here that the petitioner has not been served with the enquiry report, suspension order of fair price shop and also any show cause of notice before 16.10.2011 and as such without hearing to the petitioner, the impugned order dated 30.9.2013 passed by the opposite party no. 3 is wholly arbitrary and illegal and is also in violation of principles of natural justice." 12. By means of para 16 of the counter affidavit reply of para 15 of the writ petition has been given, which is also being reproduced herein below : "16. 3 is wholly arbitrary and illegal and is also in violation of principles of natural justice." 12. By means of para 16 of the counter affidavit reply of para 15 of the writ petition has been given, which is also being reproduced herein below : "16. That in reply to the contents of para 15 of the writ petition, it is stated that the averments of para under reply as stated are incorrect and denied. It is stated that the order dated 3.10.2011 (Annexure no. 2 to the writ petition) has been passed in a valid and legal manner which need to be interfered and the opposite party no. 1 has been very rightly rejected the appeal." 13. The learned counsel for the petitioner has submitted that by means of para 16 of the counter affidavit the contents of para 15 of the writ petition has not been denied or controverted, therefore, those contents of writ petition may be deemed to have been admitted by the opposite parties. 14. In view of the above, the learned counsel for the petitioner has vehemently submitted that both the impugned orders dated 20.11.2013 and 30.9.2011 are patently illegal, arbitrary, discriminatory and uncalled for besides being issued in violation of principles of natural justice. Therefore, both the orders may be quashed and the writ petition may be allowed. 15. Per contra, the learned Standing Counsel has submitted that the impugned orders have been passed strictly in accordance with law. Those orders are speaking and reasoned order and may not be interfered and the writ petition is liable to be dismissed with costs. 16. I have perused the pleadings of the writ petition and records thereof. 17. The perusal of the order dated 30.9.2011 passed by the District Supply Officer, Ambedkar Nagar reveals that the petitioner has not been afforded ample opportunity of hearing inasmuch as admittedly, vide order dated 12.9.2011 the license of the fair price shop of the petitioner was suspended and the petitioner was directed to submit his explanation and to produce the stock and sale register by 15.9.2011 i.e. within a period of three days. The aforesaid admitted fact makes it crystal clear that the authorities were adamant to take coercive action against the petitioner without providing him ample opportunity of hearing as prescribed in the Government Order dated 29.7.2004. 18. The aforesaid admitted fact makes it crystal clear that the authorities were adamant to take coercive action against the petitioner without providing him ample opportunity of hearing as prescribed in the Government Order dated 29.7.2004. 18. I have also perused the order dated 20.11.2013 passed by the Appellate Authority whereby the statutory appeal of the petitioner was rejected. The perusal thereof reveals that the contention and grounds of appeal of the petitioner has not been considered and despite considering the fact that the petitioner was provided only three days time to submit explanation, no appropriate order has been passed by the Appellate Authority. The petitioner has categorically submitted in the appeal that he was unaware about the suspension order and inquiry report etc. but the said fact was not considered by the Appellate Authority and the order dated 20.11.2013 has been passed absolutely without application of mind. 19. It is the settled proposition of law by the Hon'ble Apex Court as well as by this Court that before passing any order which involves civil consequences and causes prejudice to the incumbent, the explanation/reply of the incumbent must have been considered carefully and the consideration of submission must reflect in the order. In the instant case the appellate order does not show that the Appellate Authority has applied its judicious mind and has ever considered the submissions of the petitioner inasmuch as the consideration of the submissions of the petitioner are not being reflected in the impugned order dated 20.11.2013. 20. I have also taken a note of the fact that specific contention of the petitioner so raised in the writ petition has not been properly replied by the respondents in the counter affidavit. It has been settled that if the specific denial to the averments of the writ petition is not made by the concerning respondents and if the respondents do not dispute or controvert the specific submissions of the writ petition, the inference would be drawn against the respondents and in favour of the petitioner. Since certain relevant paragraphs of the writ petition, as indicated herein above, has not been replied properly rather the respondents have not controverted/disputed those submissions. Therefore, the inference would be drawn that those contentions and submissions of the writ petition are acceptable to the respondents. In that case the writ petition deserves to be allowed. 21. Since certain relevant paragraphs of the writ petition, as indicated herein above, has not been replied properly rather the respondents have not controverted/disputed those submissions. Therefore, the inference would be drawn that those contentions and submissions of the writ petition are acceptable to the respondents. In that case the writ petition deserves to be allowed. 21. Learned counsel for the petitioner has drawn the attention of this Court towards the judgment reported in 2009(27) LCD 1192 : Maiku Lal vs. State of U.P. whereby this Court has allowed the identical writ petition. Counsel for the petitioner has referred para 8 to 14 of the aforesaid judgment, which are being reproduced herein below: "8. In the case of Rajpal Singh v. State of U.P. and others, 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 principle of natural justice, hence, the order of cancellation as well as the appellate order was not sustainable in the eyes of law. 9. The said legal position has been affirmed in a number of decisions rendered by this Court. In the case of Dori Lal v. State of U.P. and others, 2006 (24) LCD 1121, it has been held that the order cancelling the licence passed without the petitioner being provided the copy fo 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, it deserves to be quashed. 10. That a Division Bench of this Court in the case of M/s Mahatma Gandhi Upbhokta Samiti v. State of U.P. and others, 2001 (19) LCD 513, has held that the order of cancellation of licence of Dealer in kerosene oil which has been passed without supplying the copy fo the Enquiry report and without affording opportunity of hearing amounts to violation of principle of natural justice and therefore, deserves to be quashed. 11. I have considered the various submissions made by the learned counsel for the petitioner as well as the learned Standing Counsel. 12. 11. I have considered the various submissions made by the learned counsel for the petitioner as well as the learned Standing Counsel. 12. From the perusal of the impugned suspension order dated 29.8.2001 and the cancellation order dated 8.10.2001, it is very much clear that the suspension of the licence of the fair price shop of the petitioner was issued on the basis of the enquiry report submitted by the Supply Inspector. A perusal of the enquiry report annexed as Annexure No. CA-1 to the counter affidavit clearly shows that the enquiry dated 28.8.2001 was held ex-parte in absence of the petitioner. 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 enquiry report submitted by the Supply Inspector, the copy of which was not supplied 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 the perusal of the record, it is evidence that the impugned order of cancellation dated 29.8.2001 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 Fari 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 8.10.2001." 22. In view of the facts and circumstances of the issue and also the legal position, as discussed above, I am of the considered opinion that the impugned orders dated 20.11.2013 and 30.9.2011 passed by the respondents no. 2 and 3, as contained in Annexure no. 1 and 2 to the writ petition, deserves to be quashed and are hereby quashed. The writ of certiorari is issued to this effect. 23. 2 and 3, as contained in Annexure no. 1 and 2 to the writ petition, deserves to be quashed and are hereby quashed. The writ of certiorari is issued to this effect. 23. However, it shall be open to the respondents to pass a fresh order in accordance with law after giving adequate opportunity of hearing to the petitioner which may be done expeditiously, say within a period of two months from the date of production of the certified copy of this order before respondent no. 3. 24. The writ petition succeeds and is allowed in the terms indicated above. 25. No orders as to costs.