1. Heard Shri Satish Kumar Sharma, learned counsel for the petitioner and Shri Raj Baksh Singh, learned Additional Chief Standing Counsel for the State-respondents through video conferencing.
2. This petition has been filed for the following main reliefs:-
"i. Issue a writ, order or direction in the nature of Certiorari thereby quashing the impugned order dated 04.01.2021 passed by District Supply Officer, Lakhimpur Kheri, opposite party No.2 contained as Annexure No.1 to this writ petition.
ii. Issue a writ, order or direction in the nature of Mandamus thereby commanding the opposite party No.2 to permit the petitioner to runs the fair price shop of village Panchayat Pipra Cheet, Block Behjam, Tehsil& District Lakhimpur Kheri."
3. By order dated 04.01.2021, under challenge, the petitioner's licence of fair price shop of village Panchayat Pipra Chheet, Block Behjam, Tehsil and District Lakhimpur Kheri was cancelled.
4. A preliminary objection has been raised by learned Additional Chief Standing Counsel that the U.P. Essential Commodities (Regulation of Sale and Distribution Control) order, 2016 (In short the Control Order 2016) under Clause 13(3) Provides for the alternative remedy of appeal before Joint Commissioner (Food) of the concerned Region and in view thereof alternative remedy of appeal, this petition may not be entertained.
5. Learned counsel for the petitioner does not dispute that there is remedy of appeal, but he submits that the alternative remedy is not an absolute bar, and where the order is passed in violation of principles of natural justice of affording opportunity of hearing the writ petition is to be entertained. He submits that the order of cancellation in the present case was passed without providing opportunity of hearing to the petitioner. Learned counsel for the petitioner has placed reliance on the judgment of the Division Bench of this Court in the Case of M/S. Mahatma Gandhi Upbhokta Sahkari Samiti Vs. State and others reported in [2001(19) 513] (Annexure No.5). He further placed reliance on the judgement of Allahabad High Court in Writ-C No.43431 of 2018 (Smt. Shimla Devi Vs. State of U.P. and others) (Annexure No.6) and also on the judgement of Hon'ble Supreme Court in the case of Rajendra Prasad Vs. State of U.P. and others (2009) INSC 258 (9 February, 2009) (Annexure No.7) in support of his contention.
6. I have considered the submission advanced by the learned counsels for the parties and perused the material on record.
7. There is no dispute on the proposition of law that an alternative remedy is not an absolute bar to the maintainability of the writ petition. There are also well recognized exceptions to the principle of exhaustion of alternative remedy before approaching under Article 226 of the Constitution of India. One of such exceptions is violation of the principles of natural justice of affording opportunity of hearing, but even, in such a case, the aggrieved person may be relegated to avail the alternative remedy, first.
8. This Court proceeded to test the submission of the petitioner's Counsel, as regards violation of the principle of natural justice of affording of opportunity of hearing, to determine if the writ petition be or be not entertained on the ground of availability of remedy of appeal.
9. The order of cancellation under challenge, specifically mentions that a charge sheet dated 01.09.2020 along with the copy of the complaint, the statements recorded and the copy of the enquiry report of the Regional Food Officer, was issued to the petitioner, whereby the petitioner was granted a week's time to file reply. The petitioner submitted his reply on 09.09.2020. The order of cancellation was passed after considering the petitioner's reply.
10. Learned counsel for the petitioner was confronted to that part of the order of cancellation, which he could not dispute but, then submits that the opportunity of personal hearing was not afforded to the petitioner. However, he could not point out under which provision of the Government Order personal hearing was required to be provided nor he could reply to the query of this Court, that what prejudice has been caused, if no personal hearing was afforded. He could also not show if the petitioner ever demanded personal hearing before the authority concerned. He could also not dispute that the challenge to the order of cancellation can be made on the ground of not providing opportunity of personal hearing in the remedy of appeal.
11. At this stage, learned counsel for the petitioner submits that he may be permitted to withdraw the writ petition with liberty to file appeal before the appellate authority. The matter has been argued at length for a considerable period of time. The prayer to withdraw the writ petition, now, cannot be accepted, which is hereby rejected.
12. From perusal of the order of the cancellation, it is evident that the order was passed after providing opportunity of hearing to the petitioner. The submission therefore, that the order of cancellation was passed without providing opportunity of hearing, can not be accepted.
13. This Court is not inclined to entertain the writ petition in view of the remedy of appeal against the order of cancellation, which is hereby dismissed.
14. The petitioner may, if so advised, may avail the alternative remedy of appeal before appropriate authority.
Order Date :- 27.5.2021 Ashutosh Pandey