Heard learned counsel for the petitioner and learned Standing Counsel for the respondents.
By means of present writ petition, the petitioner has prayed for quashing the order dated 09.11.2009 passed by the respondent no.3/Up Ziladhikari, Nawabganj, District Bareilly, by which the fair price shop of the petitioner has been cancelled.
Aggrieved with the said cancellation order, the petitioner has preferred an appeal No. 278/106/306/08-09, before the respondent no.2/Commissioner, Bareily Division, Bareilly, which was also rejected vide order dated 24.10.2013.
It transpires from the record that certain inimical persons made some complaints against the petitioner. It also transpires from the record that Supply Inspector Nawabganj, Bareilly has lodged the first information report on 30.09.2009 which was registered as Case Crime No. 1037 of 2009 U/s 3/7 E.C. , against the petitioner.
Learned counsel for the petitioner submits that in the present matter neither any inquiry has been made nor the stock registrar had been verified from the fair price shop of the petitioner, and merely on the basis of lodging of the first information report, the fair price shop of the petitioner had been cancelled.
He further submits that it was the paramount responsibility of the competent authority to inquire into the matter regarding black marketing or to ascertain the genuineness of complaints made by the villagers regarding any lesser distribution of the essential commodities.
Learned counsel for the petitioner submits that merely the lodging of first information report, cannot result in holding a fair price shop owner guilty of the offences charged, and he also placed his reliance on the judgment dated 03.03.2011 passed in Civil Misc. Writ Petition No. 1766 of 2011 (Smt. Raj Kumari Singh Vs. State of U.P. and others), reported in 2011 (86) ALR 406.
Learned counsel for the petitioner further submits that it was incumbent upon the inquiry officer to follow the procedure, which is prescribed in Government Order dated 29.07.2004, which provides the procedure for suspension/cancellation of fair price shop licence, so that the officers cannot proceed in illegal manner, and unnecessary litigation may be avoided. He also placed his reliance upon a Division Bench judgment of this Court in Civil Misc. Writ Petition No. 58470 of 2005 (Harpal Vs. State of U.P. and others), decided on 26.2.2008, reported in 2008(3) ADJ 36 (DB). For ready reference the relevant paras nos. 9 to 15 are reproduced here in below:-
"9. From a reading of Clause 30 it is clear that the Uttar Pradesh Scheduled Commodities Order, 1990 was superseded and repealed. Clause 31 of 2004 Order states that it will have effect irrespective on any thing contrary to it contained in any earlier order issued by the State Government. The 2004 Order was issued by the State Government for maintaining the supplies of food grains and other essential commodities and for securing their equitable distribution and availability at fair prices. Its Clause 21 is concerned with monitoring of fair price shops by the food officer and he was to make regular inspections. Clause 22 of the Order gave power to the Food Officer and other officers the power of entry, search and seizure and Clause 23 gave power to the State Government to authorize any person to inspect the stocks of scheduled commodities other than the officer mentioned in Clause 22. So far as the maintenance of supply of food grains and other essential commodities and their distribution and availability at fair price shop was concerned the 2004 Order provided stringent methods to deal with the erring licensees of fair price shops. But the 2004 Order did not provide any procedure for suspension/cancellation of the licences or agreement of fair price shop licensees. The 2004 Order did not lay down any procedure as to how and in what manner the licence/agreement of a fair price shop licensee/agent could be suspended or cancelled nor any time frame had been provided. On the other hand, the Government order dated 29.7.2004 prescribes the procedure for taking recourse to suspension/cancellation by the officers and fixes a time frame for taking action against the licensees. The Government order dated 29.7.2004 does not contain any provision which is contrary to 2004 order. The 2004 Order has not superseded the Government order dated 29.7.2004. The G. O. dated 29.7.2004 and 2004 Order dated 20.12.2004 operate in different fields with the same object to ensure equitable and fair distribution of essential commodities to the people. We are of the considered opinion that the G.O. dated 29.7.2004 and the 2004 Order dated 20.12.2004 are valid and are still in force and are applicable in the State of Uttar Pradesh.
10. The next question is whether the impugned suspension order has been passed in violation of principles of natural justice? From the perusal of the suspension order it is clear that no opportunity of hearing was afforded to the petitioner either at the time of enquiry or before passing of the order suspending the fair price shop licence/agreement of the petitioner. In the counter-affidavit it had not been stated that opportunity of hearing was given at any stage. The enquiry was conducted behind the back of the petitioner. The entire proceedings were in violation of the principles of natural justice. The argument of learned Additional Chief Standing Counsel that principles of natural justice do not apply to the cases where fair price shop licence had been granted in view of the decision in Gopi's case, cannot be accepted. The G.O. dated 29.7.2004 clearly mandates and directs the authorities to comply with the principles of natural justice before suspending/cancelling fair price shop licences/agreements. It appears that this G.O. dated 29.7.2004 was not placed before the Division Bench which decided Gop's case and in Ignorance of this Government order the decision has been rendered and the decision has been passed in sub-stlientio in view of the law declared by the Apex Court in State of U.P. and another v. Synthetics and Chemicals and Anr. MANU/SC/0616/1991 : 1993(41)ECC326 . Since the G.O. dated 29.7.2004 was not considered by this Court the decision in Gopi's case cannot be said to be a good law or a precedent.
11. The next question is whether the petitioner has to be relegated to alternative remedy of filing an appeal to challenge the suspension order which has been passed in violation of principles of natural justice? The learned Additional Chief Standing Counsel has vehemently urged that even if there was violation of principles of natural justice the petitioner had an alternative remedy to file an appeal before the Commissioner challenging the suspension order. It is true that the suspension or cancellation of a fair price shop licence could be challenged under Clause 28(3) of the Uttar Pradesh Scheduled Commodities Distribution Order, 2004 before the concerned Divisional Commissioner, but the appeal under Clause 28(3) lies only against the suspension or cancellation of agreement of the fair price shop. But where an order is passed suspending/cancelling the fair price shop licence/agreement in violation of principles of natural justice the alternative remedy would not be a bar and a writ petition would be maintainable under Article 226 of the Constitution of India. It has been held by the Apex Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. MANU/SC/0664/1998 : AIR1999SC22 that even if an alternative statutory remedy is available it would not be a bar in maintenance of a writ petition under Article 226 of the Constitution in at least three contingencies, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is violation of principles of natural justice; or (iii) where the order or the proceedings are wholly without jurisdiction or the vires of an Act is challenged. We have already held that it was mandatory for the authorities/officers to comply with the principles of natural justice before suspending/cancelling the fair price shop licences/agreements. Therefore, we are of the considered opinion that the impugned suspension order has been passed in violation of principles of natural justice, the writ petition filed by the petitioner without availing the alternative remedy of appeal, is maintainable under Article 226 of the Constitution.
12. The last question is whether on merits the suspension order is liable to be set aside? In view of the findings recorded by us that the suspension order was passed in violation of principles of natural justice, it is not necessary to examine whether the order suspending the licence of the petitioner was in 'accordance with Government orders, but since the Additional Chief Standing Counsel has vehemently attempted to defend the order on merits, we consider it necessary to examine the correctness of the suspension order in brief. The petitioner's fair price shop licence/agreement has been suspended. The suspension order does not disclose that any opportunity of hearing was given to the petitioner. It appears that Sub-Divisional Magistrate, Faridpur, Bareilly on the basis of oral complaints of the villagers got an enquiry conducted against the petitioner on 27.5.2005 and in the enquiry it was found that the shop was closed and rate board was not put outside the shop. The fair price shop licensee was charging Rs. 12 per litre in excess of the scheduled price of kerosene oil which was violation of condition No. 24 (Ga) of the licence/agreement. In the enquiry ration cards were also inspected and it was found that every month kerosene oil was not properly distributed. Sugar was also not properly distributed to persons who were below the poverty line which was violation of condition No. 3 of the licence/agreement. The shop of the petitioner was suspended and attached to another fair price licensee Devendra Kumar Pathak. It is not mentioned in the suspension order that who conducted the enquiry and when? It is also not clear that if the shop was closed at the time of enquiry then from where this fact was revealed that the petitioner was charging Rs. 12 per litre in excess of scheduled price of kerosene oil and from where the ration cards were inspected by the enquiry officer. The impugned suspension order does not disclose that any show-cause notice was issued to the petitioner to submit his reply as to why the petitioner's licence may not be cancelled. According to learned Counsel for the petitioner on the basis of such vague allegations licence/agreement of the petitioner could not be suspended. He has placed reliance on the decisions of this Court in Civil Misc. Writ Petition No. 60978 of 2005, Smt. Alka Rani v. State of U.P. and Ors. decided on 14.9.2005. The order of the Division Bench is extracted below:
"We have heard the learned Counsel for the petitioner and the learned standing counsel. Petitioner's fair price shop licence was suspended and by the impugned order dated 22.8.2005 it has been cancelled. The cancellation order says that despite opportunity the petitioner did not submit any reply.
Normally, we would have directed the petitioner to avail alternative remedy of appeal, but we find from the show cause notice (Annexure-4 to this writ petition) that almost all the charges are absolutely vague without giving any specific instance and without mentioning any material on the basis of which each of the charges is proposed to be proved against the petitioner. For example when charge No. 2 says that distribution according to entitlement of ration cardholders has not been made every month, the notice should also have indicated when and to which card holders distribution was not made. Similarly, when charge No. 4 says that kerosene oil is being sold at the rate of Rs. 11 per litre, it should have been disclosed when and from which person such extra value was charged.
Without specific instances of this kind and without informing the material which is sought to be read against the petitioner in support of these charges, no proper effective defence or reply was possible. The only thing, which the petitioner could have done, was to make an equally vague denial that he was not guilty of these charges, which ultimately would lead nowhere. Levelling of charge is easy, proving of charge is another matter. A person can be punished for proved charges and not for levelled charges. The standard of proof may vary but nevertheless proof must be there. If evidence is there to prove charges, this Court will not go into sufficiency of the evidence. But a finding based on no evidence is not sustainable.
In the circumstances, we find that the impugned order is based on no material. The writ petition is allowed. The impugned order dated 22.8.2005 is quashed."
13. The decision in Smt. Alka Rani's case applies to the facts of the case in hand, as in this case also allegations are vague and specific instances and material sought to be read in support of the allegations against the petitioner have not been mentioned. If no material is mentioned in the suspension order then substituting the material in the counter-affidavit would be of no help to the respondents. We further find that along with the suspension order no show-cause notice had been issued to the petitioner directing him to show-cause as to whey his fair price shop licences/agreement may not be cancelled. The impugned suspension order is vitiated on this ground alone being in violation of mandatory requirements of G.O. Dated 29.7.2004.
14. For the aforesaid reasons, we are in agreement with learned Counsel for the petitioner that the impugned suspension order is vague and on the basis of which petitioner's fair price shop licence/agreement could not be cancelled and the impugned order deserves to be quashed.
15. In the result, this writ petition succeeds and is allowed. The impugned suspension order dated 25.5.2005 passed by respondent No. 2, Annexure-1 to the writ petition, is quashed"
Heard rival submissions of learned counsel for the parties and perused the record.
Learned Standing Counsel has failed to bring to the notice of the Court any provision either under the Essential Commodities Distribution Order, 2004 or under any other Government Order issued either under the 2004 order or 1990 order empowering the Licensing Authority to cancel a fair price shop agreement merely on account of a dealer being involved in a criminal case. Hence the cancellation of the petitioner's agreement on the ground of his involvement in aforesaid criminal case under the Essential Commodities Act is also unsustainable.
Even otherwise, I am of the opinion that mere filing of a F.I.R. cannot result in holding a fair price shop owner guilty of the offences charged. If there be a conviction, then it is possible to proceed, based on the conviction and not otherwise. In case if the F.I.R. is lodged, it is still open to the respondents to proceed by leading independent evidence and statements of the persons recorded.
It is admitted situation that in the present matter at no point of time any inquiry/inspection has been made by the competent authority or stock registrar had been verified from the fair price shop of the petitioner, and without affording any opportunity of hearing to the petitioner, merely on lodging of the first information report under Section 3/7 E.C. Act, against the petitioner, the fair price shop of the petitioner had been cancelled.
Consequently the orders dated 09.11.2009 and 24.10.2013 are set-aside. The respondents are directed to resume the supply of the food grains to the petitioner if there be no other contrary order. However, it shall be open to the respondents to hold an enquiry and proceed according to law.
The writ petition is accordingly allowed.
Order Date :- 11.12.2014 VKG