Court No. - 32
Case :- WRIT - C No. - 27081 of 2018 Petitioner :- Mohd. Rizwan Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Ankit Agarval Counsel for Respondent :- C.S.C.,Mahesh Narain Singh,Yatindra
Hon'ble Rohit Ranjan Agarwal,J.
Heard learned counsel for the petitioner, learned Standing Counsel for the respondents State and Sri Yatindra, learned counsel for the respondent no. 5.
This writ petition has been filed seeking quashing of the order dated 31.12.2016 cancelling the license of fair price shop of the petitioner and the order dated 27.02.2018 passed in appeal confirming the order of licensing authority.
It is contended by learned counsel for the petitioner that on the basis of a complaint filed by the respondent no. 5 on 13.05.2016 an ex-parte inquiry was conducted after examining the various persons. A show cause notice was issued which was replied by the petitioner on 14.11.2016, but the licensing authority without considering the reply had cancelled the license. Appeal filed under Section 13 of Uttar Pradesh Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016 (hereinafter referred to as 'the Control Order, 2016) was dismissed in cursory manner without adjudicating the grounds, so raised, therein. Reliance has been placed upon a decision of Apex Court in case of Central Board of Trustees Vs. M/s Indore Composite Pvt. Ltd., Civil Appeal No. 7240 of 2018, decided on 26.07.2018.
Opposing the writ petition, learned Standing Counsel submitted that the proceedings under the Control Order, 2016 are summary in nature and the authorities after considering the reply and the grounds raised in the appeal had recorded concurrent finding as to the shortfall of supply of essential commodities/food-grains to the card holders. He further submitted that the controversy, involved in the present case, stands concluded by the 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.
I have heard learned counsel for the parties and perused the material on record. It is not in dispute that upon inquiry conducted by the licensing authority and on the examination of the report as well as consideration of the reply of the petitioner the licensing authority had cancelled the license of fair price shop finding shortfall in the distribution of food-grains. The appellate order takes care of the fact that entire records as well as affidavit filed in support of the petitioner had been considered and no material was found for interference in the order of cancellation. In case of Najakat Ali (supra), this Court has occasion to consider that the proceedings are summary in nature and has held as under;
"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."
In view of the decision of Najakat Ali (supra) this Court finds that there is no ground for interference in the matter and reliance placed upon the decision of the Apex Court is not applicable in the present case as the licensing authority as well as the appellate authority had in depth dealt with the issue raised by the petitioner and had recorded concurrent finding of fact for which no interference is required by this Court.
Writ petition devoid of merit and is dismissed, accordingly.
Order Date :- 25.10.2021 Shekhar