1. The petitioner was a licensee of a fair price shop situated in village Gaudriya, Block Mihipurwa, Tehsil Motipur, District Bahraich. By an order dated 29.09.2016 passed by the Sub-Divisional Magistrate the license of the petitioner was suspended and the card holders were attached with a fair price shop situated in another village. Subsequently, by an order dated 31.12.2016, the license of the petitioner was restored. It appears that in the year 2017, one Krishna Kumar filed a Writ Petition (P.I.L. Civil No. 7019 of 2017) before this Court alleging therein that he and other card holders were facing a lot of inconvenience in getting their essential commodities from a shop situated at a considerable distance which it was alleged was on account of the fact that no final orders had been passed against the petitioner in the inquiry initiated against him. In the circumstances, it was prayed that the authority concerned be directed to take a final decision in the matter. On 04.04.2017, without notice to the petitioner, the said petition was disposed of by a Division Bench of this Court with certain directions. The order dated 04.04.2017 is extracted below:
"The petitioner is a resident of village Mihipurwa, District Bahraich. His grievance is that the petitioner has to travel long distances in order to obtain his essential food supplies from the ration shop inasmuch as the license of the fair price shop holder of the village in question has been suspended, and no action has been taken nor any supplies are being ensured to the petitioner and other villagers from the shop of the village.
Learned counsel submits that as a matter of fact the license of the respondent no. 6 who is the fair price shop license holder had been rightly suspended as there were serious irregularities committed by him. His license was restored by the Sub-Divisional Magistrate earlier in spite of having found that he has committed irregularities. Subsequently his license was again restored on 11.8.2016 after being cancelled, and then suspended for a third time on 29.9.2016. Against the said suspension the said license holder filed an appeal before the Commissioner but the said appeal was got dismissed as not pressed and as per the knowledge of the petitioner as on date the license still continues to be under suspension.
Learned counsel submits that no final action has been taken against the respondent no. 6 and by way of an interim arrangement the appellant and the other villagers have to face the ordeal of collecting the commodities from a far away shop.
We have heard learned counsel for the petitioner and the Standing Counsel and keeping in view the aforesaid information that has been disclosed in this writ petition, if no final orders have been passed, the respondent no. 4 the Sub-Divisional Magistrate, Nanpara shall proceed to pass appropriate orders within six weeks from the date of presentation of a certified copy of the order before him. In the event any orders have already been passed finally disposing off the said dispute the same shall be communicated to the petitioner.
It goes without saying that if any orders are yet to be passed the same shall be done only after giving opportunity of hearing to respondent no. 6. The writ petition is Disposed Off with the said directions."
(emphasis supplied)
2. The order dated 04.03.2017 passed by this Court, was served upon the District Magistrate, by one Chhote Lal for compliance. The District Magistrate in turn directed the Sub-Divisional Magistrate, Motipur, Bahraich to ensure compliance of the order passed by this Court. Despite the fact that by order dated 31.12.2016 the license of the petitioner had been restored, the Sub-Divisional Magistrate treating the order passed by this Court as a mandate to take action against the petitioner, directed the Supply Inspector to hold a preliminary inquiry against the petitioner. The Supply Inspector along with the Supply Clerk, Mihipurva made a spot inspection on 18.05.2017 and recorded the statement of some card holders / their relatives as also the statement of the Pradhan of the village and thereafter submitted his report recommending cancellation of the license of the petitioner. The Sub-Divisional Magistrate without issuing any show cause notice to the petitioner and without affording any opportunity of hearing to the petitioner, mechanically forwarded the said report to the District Magistrate for approval. On 24.05.2017, the District Magistrate without verifying as to whether the procedure prescribed for cancelling the license had been adhered to or not, granted his approval and on 27.05.2017, the Sub-Divisional Magistrate passed the impugned order cancelling the fair price shop license of the petitioner.
3. Aggrieved by the order dated 26.05.2017 the petitioner preferred an appeal inter alia on the ground that the impugned order was passed in gross violation of the principles of natural justice. The Deputy Commissioner, respondent no. 2 herein, without taking into account the submissions made by the petitioner, reproduced the order passed by the Sub-Divisional Magistrate and thereafter simply affirmed the same.
4. Sri Rakesh Kumar Srivastava, learned counsel for the petitioner has submitted that the fair price shop agreement of the petitioner has been cancelled in gross violation of the principles of natural justice and without adhering to the procedure prescribed for the purpose. The counsel submits that neither any show cause notice / charge sheet was served upon the petitioner nor any inquiry was held by the Sub-Divisional Magistrate in the matter. He has further submitted that the Appellate Authority has without taking into account the grounds raised by the petitioner in his appeal, has mechanically affirmed the cancellation order and, as such, the impugned orders are liable to be set aside. Per contra the learned Standing Counsel appearing on behalf of the State-respondents and Sri Jai Kumar, learned Counsel appearing on behalf of respondent no. 3 have supported the impugned orders.
5. Heard the learned counsel for the parties and perused the record.
6. The State Government has issued a Government Order dated 29.07.2004, laying down the procedure for suspending/ cancelling the fair price shop license/agreement. Paragraph nos. 2, 4, and 5 of the said Government Order being relevant are being quoted below:
"2. mDr i`"BHkwfe esa eq>s ;g dgus dk funs'k gqvk gS fd xzkeh.k ,oa 'kgjh {ks=ksa dh mfpr nj dh nqdkuksa ds fuyEcu @fujLrhdj.k ds lEcU/k esa fuEu izfdz;k dk ikyu fd;k tk,A ¼1½ mfpr nj dh nqdku dk fuyEcu ek= fdlh O;fDr dh f'kdk;r ds vk/kkj ij ugha fd;k tk;A ;fn fdlh nqdkunkj ds fo:) fdlh lzksr ls f'kdk;r izkIr gksrh gS rks igys mldh izkjfEHkd tkap djk;h tk,A ;fn izkjfEHkd tkap esa nqdkunkj ds fo:) ,slh xEHkhj vfu;ferrk,a izFke n`"V;k fl) gks jgh gksa ftuds vk/kkj ij nqdkunkj dh nqdku fujLr gksus dh lEHkkouk gks rHkh nqdku dks fuyfEcr fd;k tk; vkSj lkFk gh lkFk nqdkunkj dks dkj.k crkvks uksfVl tkjh fd;k tk, fd mldh nqdku D;ksa u fujLr dj nh tk,A ;fn izkjfEHkd tkap esa ik;k tk; fd vfu;ferrk bruh xEHkhj ugha gS fd nqdku ds fujLrhdj.k dh lEHkkouk gks rks dsoy dkj.k crkvks uksfVl tkjh fd;k tk;A fuyEcu vkns'[email protected] crkvksa uksfVl ,d Lihfdax vkMZj gksuk pkfg, rFkk mlesa izkjfEHkd tkap esa ik;h x;h mu lHkh vfu;ferrkvksa dk fooj.k gksuk pkfg, ftudk mRrj nqdkunkj ls visf{kr gksA ¼2½ ¼d½ [kk| foHkkx ds vf/kdkfj;ksa @ ftyk iz'kklu ds vf/kdkfj;ksa @vU; izkf/kd`r O;fDr;ksa }kjk mfpr nj dh nqdku ds vkdfLed fujh{k.k ds nkSjku ;fn ik;k tkrk gS fd nqdkunkj }kjk dksbZ xEHkhj vfu;ferrk dh x;h gS rks Hkh nqdku dks fu;qfDr vf/kdkjh }kjk vius foosd dk iz;ksx djrs gq, fuyfEcr fd;k tk ldrk gSA ¼[k½ [kk| foHkkx ds vf/kdkfj;ksa @ ftyk iz'kklu ds vf/kdkfj;ksa @ vU; izkf/kd`r O;fDr;ksa }kjk ;fn nqdkunkj dksbZ vfu;fer dk;Z] forj.k esa xM+cM+h ;k vuqlwfpr oLrqvksa dh dkykcktkjh djrs gq, idM+k tkrk rks Hkh fu;qfDr vf/kdkjh }kjk vius foosd dk iz;ksx djrs gq, nqdku dks fuyfEcr fd;k tk ldrk gSA mDr ifjfLFkfr;ksa esa nqdku ds fuyEcu dh fLFkfr esa Hkh Lihfdax vkMZj ls fuyEcu vkns'k tkjh fd;k tk;sxk ftlesa lHkh vfu;ferrkvksa dk mYys[k gksxk rFkk nqdkunkj dks dkj.k crkvks uksfVl tkjh fd;k tk;sxk fd D;ksa u mldh nqdku fujLr dj nh tk;A 4- fuyfEcr dh x;h nqdkuksa ds fo:) tkap dh dk;Zokgh vf/kdre ,d ekg esa vfuok;Z :i ls iwjh dh tk;sxh rFkk tkap esa lEcfU/kr nqdkunkj dks lquokbZ dk iwjk ekSdk fn;k tk;sxkA lEcfU/kr nqdkunkj dk ;g nkf;Ro gksxk fd og tkap esa viuk iwjk lg;ksx ns rkfd tkap dk dk;Z tYnh ls tYnh iwjk fd;k tk lds rFkk fu;qfDr izkf/kdkjh }kjk izdj.k esa xq.k&nks"k ds vk/kkj ij vfUre fu.kZ; fy;k tk ldsA ;fn nqdkunkj }kjk tkap esa lg;ksx ugha fn;k tk jgk gks vkSj tkap esa foyEc djus dk iz;kl fd;k tk jgk gks rks nqdkunkj dks bl vk'k; dk Hkh uksfVl tkjh fd;k tk;sxk vkSj viuk i{k j[kus dk vfUre volj iznku fd;k tk;sxkA 5- tkap dh dk;Zokgh vf/kdre ,d ekg esa iw.kZ djds fu;qfDr izkf/kdkjh }kjk izdj.k esa vfUre fu.kZ; fy;k tk;sxk vkSj xq.k nks"k ds vk/kkj ij ,d Lihfdax vkMZj tkjh fd;k tk;sxkA bl vkns'k esa ;g Li"V mYys[k gksuk pkfg, fd lEcfU/kr nqdkunkj dks lquokbZ dk volj fn;k x;k vkSj mls lquk x;kA ;fn nqdkunkj us tkap esa lg;ksx ugha fd;k gks vkSj lquokbZ ds volj dk tkucw>dj mi;ksx u fd;k gks rks vfUre vkns'k esa bl ckr dk Hkh iwjk mYys[k gksuk pkfg, fd nqdkunkj dks volj iznku fd;k x;k rFkk vfUre uksfVl fn;k x;k ijUrq mlus tkucw> dj volj dk mi;ksx ugha fd;k vkSj tkap esa lg;ksx ugha fd;kA"
(emphasis supplied)
7. As per clause 4 of the Government Order dated 29.07.2004, before cancelling the fair price shop license, the Competent Authority is obliged to issue a show cause notice containing the charges levelled against the licensee. The Competent Authority is required to pass a speaking order after holding an oral inquiry in accordance with the principles of natural justice. As per the said Government order, in case the license holder is not cooperating in the inquiry, the Competent Authority is obliged to again issue a notice to that effect and afford a last opportunity to the license holder.
8. In Puran Singh v. State, (2010) 2 UPLBEC 947, a Full Bench of this Court has held that paragraph nos. 4 and 5 of the Government order dated 29.07.2004 contemplate a full fledged inquiry before the license/ agreement of a fair price shop is cancelled. The Full Bench has held that as per the Government order dated 29.07.2004 an opportunity of hearing is required before passing an order of cancellation.
9. In Writ - C No. 3611 of 2014, Sanjay Kumar v. State, following Puran Singh (Supra) a learned Single Judge of this Court has held as follows:
"The procedure for holding an inquiry for cancelling the licence of the fair price shop has been provided in the Government Order dated 29.07.2004 read with U.P. Essential Commodities Distribution Order 2004.
The aforesaid Government Order and Distribution Order came up for consideration before the Full Bench of this Court in case of Puran Singh Vs. State of U.P. and others 2010 (3) ADJ 659 (FB). The Court considering para 4 and 5 of the Government Order dated 29.07.2004 held that it contemplates a full-fledged inquiry pursuant to the show cause notice for cancellation and then a final decision in the matter.
The aforesaid decision was followed by the learned Single Judge in his judgement and order dated 28.11.2014 passed in Writ-C No. 12737 of 2013 and referring to paragraph 35 of the Full Bench decision in Puran Singh's case his Lordship observed that a full-fledged inquiry is necessary before cancelling the agreement and it would require service of the charges, along with material in support of each charge, the information about the place and date of inquiry, the statements of persons on whose complaint inquiry was started or in a case of suo-motu inquiry, the statements of the persons appearing before the Inquiry Officer.
In other words it means that an independent inquiry before passing an order of cancellation of licence to run a fair price shop is mandatory and a show cause notice simplicitor is not sufficient to conform to the principles of natural justice.
It is obligatory upon the authorities to hold a full-fledged inquiry against the fair price shop dealer, after serving of the charge sheet with regard to the date and place where the hearing will took place and to give an opportunity of hearing. This is in addition to the show cause notice issued for the purposes of suspension of the licence of the fair price shop."
(emphasis supplied)
10. In Laloo Singh v. State, (2015) 6 All LJ 613 this Court has held that the cancellation of an agreement/license of a party is a serious business and cannot be taken lightly. In order to justify the action taken to cancel such an agreement/license, the authority concerned has to act fairly and in complete adherence to the rules/guidelines framed for the said purposes including the principles of natural justice.
11. In the case at hand, apparently the order cancelling the license of the petitioner has been passed treating the observations made by this Court in the order dated 04.04.2017 to be a dictum to initiate a fresh inquiry against the petitioner. While passing the order dated 27.05.2017 the Sub-Divisional Magistrate has failed to consider the fact that the suspension of the petitioner was revoked by him by his order dated 31.12.2016 and at the time when the order dated 04.04.2017 was passed by this Court, no inquiry was pending against the petitioner. In the circumstances, as per the order passed by this Court, the Sub-Divisional Magistrate was only required to communicate the order dated 31.12.2016 to Krishna Kumar.
12. In any case, before the fair price shop license of the petitioner was cancelled, neither any show cause notice was issued to him nor any charge sheet was served upon him. Admittedly, the license has been cancelled without affording any opportunity of hearing to the petitioner and without holding any inquiry, whatsoever. The only basis of the cancellation is the alleged inspection report submitted by the Supply Inspector. The impugned order of cancellation has been passed without supplying a copy of the said report to the petitioner.
13. In view of the settled legal position, the cancellation of the petitioner's fair price shop agreement / license is ostensibly in contravention of the principles of natural justice and cannot be sustained. The Appellate Authority has also failed to rectify the error committed by the Sub-Divisional Magistrate and as such the order passed by the Appellate Authority is also liable to be set aside alongwith the order passed by the Competent Authority.
14. For the reasons mentioned above, the writ petition is allowed. The order dated 27.05.2017 passed by the Sub-Divisional Magistrate and the order dated 04.10.2017 passed by the Deputy Commissioner (Food) are hereby quashed.
15. No order as to cost.
Order Date :- November 26, 2019 Anupam-Pradeep/-