Court No. - 32
Case :- WRIT - C No. - 24351 of 2018 Petitioner :- Bablu Kumar Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Agni Pal Singh,Pratima Singh,S.M. Iqbal Hasan Counsel for Respondent :- C.S.C.
Hon'ble Rohit Ranjan Agarwal,J.
1. Heard learned counsel for the petitioner and learned Standing Counsel for respondents State.
2. This writ petition has been filed challenging the cancellation order of fair price shop passed by Sub Divisional Officer, Nagina, Bijnor and appellate order passed by respondent no. 2, confirming the order of licensing authority.
3. The ground raised in the writ petition is that no opportunity of hearing was provided to petitioner and after remand, records were not verified by licensing authority before arriving at a finding that there was any discrepancy or shortfall in distribution of food grains.
4. It is further contended that the certificate of observor/vigilance officer was given every month pursuant to which food grains was lifted by dealer but the authority had failed to take note of the said fact and license has been cancelled.
5. Opposing the writ petition, learned Standing Counsel submitted that both the licensing authority as well as appellate authority has taken care of the fact that reply submitted by petitioner was considered and there was shortfall in distribution of food grains and there being complaint, the procedure provided under U.P. Control Order, 2016 was complied with. He has relied upon the recent judgment of this Court in case of Najakat Ali vs. State of U.P. and 4 others, Writ Petition No. 15420 of 2020, decided on 22.10.2021.
6. Having heard learned counsel for the parties and from perusal of material on record, it transpires that grounds taken in the writ petition have already been considered and decided in case of Najakat Ali (supra). Relevant Paras 145 to 152 of the said judgment are quoted hereasunder:-
"145. When the Act of 2013 was enforced with certain objects followed by Act of 2016, the State Government, in order to ensure targeted delivery of essential commodities to the last person of the society, promulgated Control Order 2016 providing a complete procedure to cut short the dispute arising between the licensee and the licensor.
146. Earlier no such provision existed under Order of 2004 which found place under sub-Clause (7) of Clause 8 of Control Order 2016. Mechanism provided for action against a licensee only when, on an enquiry, any adverse material is on record, show cause notice is mandated and after consideration of reply, the license can be cancelled.
147. Thus, requirement of hearing a licensee before his license is cancelled, is protected under the new regime. It is not a unilateral action which the authorities can take by cancelling the license at their whims. Further, safeguard has been provided under Clause 13 by providing a right to appeal against the action of the licensor. These actions were missing under the previous Control Orders and time to time external aid was taken when it was found that action of the State Authorities cannot be left at their mercy.
148. It has to be kept in mind that proceedings before these administrative authorities are summary in nature and ground taken that full-fledged departmental inquiry should be held and the procedure, as provided under the departmental inquiry should be followed, cannot be accepted. In the case of Meena Devi vs. State of U.P. and others, (2018 ) 10 ADJ 385, this Court had in clear terms relying upon the decision of Apex Court in case of A.S. Motors Pvt. Ltd. vs. Union of India, (2013)10 SCC 114 rightly held that Article 311 of the Constitution is not attracted and no such inquiry can be held.
149. This Court finds that once earlier Government Orders were repealed and Control Order 2016, providing for procedure, the Government Order dated 29.07.2004 being inconsistent with the Control Order 2016 cannot be taken into account and is not saved under Section 24 of the General Clauses Act.
150. Principle of audi alteram partem is fully adhered to once the opportunity is granted by the licensor for giving reply/explanation. The argument that no opportunity of hearing was provided cannot be accepted.
151. It has already been discussed above that a dealer is bound by the license/agreement and violation of any of the conditions of the agreement leads to suspension/revocation of his license. His license is subservient to right of an individual card holder given under Section 3 of the Act of 2013, and thus no question arises to grant him leverage for benefit of procedure of a departmental inquiry.
152. In view of the above, this Court finds that the ground raised in this bunch of petitions for non supply of complaint and affidavits of cardholders before enquiry officer; non supply of inquiry report; non affording of opportunity to examine the witnesses/card holders and cross examine the complainant/Inquiry Officer; non supply of documents and material relied upon by the enquiry officer/complainant mentioned in the show cause notice/suspension order; non providing of opportunity of hearing; and, non consideration of affidavits filed in favour of dealer/licensee post complaints, do not hold good in the light of Control Order, 2016, providing for complete mechanism under sub-clause (7) of Clause 8."
7. In view of said fact, writ petition stands dismissed in terms of decision of
Najakat Ali (supra).
Order Date :- 26.10.2021 V.S.Singh