Court No. - 7
Case :- WRIT - C No. - 31380 of 2018 Petitioner :- Riyazuddin Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Sudhanshu Kumar,Pradeep Kumar Counsel for Respondent :- C.S.C.
Hon'ble Saumitra Dayal Singh,J.
1. Despite stop order dated 01.11.2018, no counter affidavit has been filed by the respondents. The opportunity to file counter affidavit is thus closed.
2. The present writ petition has been filed against the order dated 14.06.2018 passed by the Commissioner, Kanpur Division by which the said authority has rejected the appeal filed by the petitioner arising from the order dated 27.06.2015 passed by the District Magisrate- Kanpur Nagar. By that order, the District Magistrate- Kanpur Nagar had rejected the application made by the petitioner for renewal of his license to engage in trade in fire cracker business.
3. The submission advanced by the learned counsel for the petitioner is that the rejection of the application vide order dated 12.10.2006 had been made on a ground different from that in the show cause notice preceding that order. The show cause notice had been issued on the ground that the petitioner's shop was located in a densely populated area where it may not be possible for a fire tender to reach, in case of an accidental occurrence. The petitioner replied to the aforesaid notice. Thereafter, the impugned order has been passed in which reliance has been placed on report made by the Superintendent of Police (East, Kanpur Nagar) Kanpur Nagar; City Magistrate-Kanpur Nagar and; the Chief Fire Officer, Kanpur Nagar. Copies of those reports were never made available to the petitioner before passing the impugned order. It is thus submitted adverse inference has been drawn against the petitioner without confronting him with the adverse material relied against the petitioner resulting in gross violation of principles of natural justice.
4. It has also been submitted that the impugned order has been passed on a different reasoning than contained in the show cause notice, inasmuch as, while the notice had been issued proposing to reject the renewal application as the shop of the applicant was located in a densely populated area, the rejection order contains a reasoning that the shop of the petitioner is located in an area where there is risk of communal riot. It is submitted that such a reasoning is not contained in the show cause notice, and therefore, the same could not have appeared in the order. Again violation of rules of natural justice is alleged.
5. Learned Standing Counsel on the other hand submits that even if the fresh reasoning contained in the order dated 27.06.2015 is ignored i.e. with respect to the risk of communal riots, still, the order proceeds to record findings that the shop of the petitioner was located in a densely populated area, and therefore, the license could not be renewed.
6. However, it remains undisputed that the material relied upon in the aforesaid order being the three reports of the Superintendent of Police; City Magistrate and; the Chief Fire Officer were not made available to the petitioner. Such averment has been made in paragraph no. 27 of the writ petition. In the absence of any counter affidavit to that effect, the same has to be taken to be admitted on the principle of non traverse. Sufficient time had been granted to the State to file counter affidavit. However, despite stop order, State had not filed the counter affidavit. Therefore, that opportunity has been closed.
7. Even otherwise, it is difficult to disect the reasoning offered in the impugned order into two parts as suggested by the learned Standing Counsel. On a plain reading of the order, that reasoning appears to be composite and one. The renewal of license appears to have been rejected on the reasoning that the shop of the petitioner is located in a densely populated area where communal tension exists. Relevance of such fresh reasoning to the case of the petitioner apart, the petitioner had to be noticed with the same before any order could be passed on such reasoning.
8. In the absence of copies of the three reports having been first available and in view of the fresh reasoning being introduced in the order without any notice in that regard, the impugned order cannot be sustained. The impugned order dated 27.06.2015 and 14.06.2018 are hereby set aside the matter is remitted to the Assessing Authority to pass a fresh order on the application for renewal for the relevant term. Before passing any order, the authority may necessarily issue a fresh show cause notice containing the exact grounds on which the renewal sought by the petitioner is proposed to be rejected and the material being considered adverse to the petitioner.
9. Thus, the petitioner may first file a certified copy of this order before the licensing authority within three weeks from today. Subject to such compliance being shown by the petitioner, the licensing authority may issue a fresh show cause notice to the petitioner containing such reason/s on which the application of the petitioner is proposed to be rejected alongwith copies of the adverse material on which reliance is proposed to be placed. within a period of two weeks' from the date of filing a certified copy of this order. The petitioner shall have three weeks' time thereafter to file his final reply to such notice. Upon such reply being filed, licensing authority may proceed to pass fresh order strictly in accordance with law within further period of one month from the date of submission of such reply.
10. With the above observations, the writ petition stands disposed of.
Order Date :- 30.11.2018 S.Chaurasia