HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Heard Sri S.C. Sitapuri, learned counsel for the petitioner, learned Standing Counsel for and on behalf of opposite parties no. 1 and 2 and Sri Suresh Chandra Shukla, learned counsel on behalf of opposite party no.3.
By means of present writ petition the petitioner is seeking a writ of certiorari for quashing the impugned appellate order dated 26.12.2007 passed by the Commissioner, Lucknow Division, Lucknow and order dated 16.07.2007 passed by the Up Zila Adhikari, Sandila, district Hardoi, by which licence of Fair Price Shop of the petitioner has been cancelled.
The brief facts of the case as culled out from the pleadings of the writ petition are as under:-
The petitioner was having a licence of Fair Price Shop of Village Panchayat Kakrali, block Sandila, tehsil Sandila, district Hardoi. It is alleged that on account of extraneous reasons and on the instigation of the village Pradhan, the petitioner's licence was suspended vide order dated 18.05.2007 on the ground of irregularities committed by the petitioner in distribution of essential commodities. Since the allegations/ charges in the suspension order were vague as no specific charge was described, it was not possible to submit the reply of the same. However, the petitioner in a bonafide manner submitted her reply on 25.05.2007 denying the allegations levelled against her. It was also mentioned by the petitioner in her reply that she has never committed any irregularities and always distributed essential commodities in just and fair manner and no grievance was ever raised by anybody against the petitioner except few interested persons particularly the village Pradhan. The opposite party no.2 without appreciating reply and without holding any proper enquiry in the matter as well as without affording any opportunity to the petitioner passed the order dated 16.07.2007 thereby cancelling the licence of the petitioner's Fair Price Shop.
The impugned order reveals that while cancelling the licence of the petitioner's Fair Price Shop a preliminary enquiry report dated 18.05.2007 of Supply Inspector was taken into consideration alongwith the resolution of the Gram Panchayat dated 04.03.2007.
The submission of learned counsel for the petitioner is that a preliminary enquiry report of Supply Inspector dated 18.05.2007 and the resolution of Gram Panchayat dated 04.03.2007 was never supplied to the petitioner and the said material has been used against the petitioner behind her back. The Supply Inspector never associated the petitioner during preliminary enquiry and perusal of impugned order reveals that while establishing every charge the preliminary enquiry report of Supply Inspector dated 18.05.2007 was relied upon and the opposite party no.2 in fact has not done any enquiry. It is also submitted that initially the licence of the petitioner was suspended on the same date, on which the preliminary enquiry report was submitted by the Supply Inspector. The learned counsel for the petitioner further submitted that it was incumbent upon the opposite party no.2 to hold full fledged enquiry by providing an opportunity of denying the allegations levelled against the petitioner. The petitioner in support of her reply also filed affidavits of number of persons who have stated on oath that they were getting properly essential commodities from the petitioner and it appears that none of the affidavit has been taken into consideration by the opposite party no.2 while passing the cancellation order.
Learned counsel for the petitioner vehemently submitted that there was no evidence against the petitioner except the so called preliminary enquiry report of the Supply Inspector dated 18.05.2007.
The petitioner feeling aggrieved against the impugned cancellation order dated 26.12.2007 preferred an appeal before the Commissioner, Lucknow Division, Lucknow, which was dismissed vide order dated 26.12.2007. The learned counsel points out that the appellate authority has failed to consider the fact that the impugned order has been passed without holding proper enquiry, only on the basis of preliminary enquiry report, in utter violation of principles of natural justice. The appellate authority also failed to take into consideration the fact that out of 12 members of Gram Panchayat, 10 members had given their affidavits that they never signed the resolution and their signatures on the said resolution, if any, are forged.
Learned Standing Counsel while opposing the writ petition submitted that on the basis of complaint of the beneficiaries of the scheme an enquiry was got conducted and after being prima-facie satisfied, the licence of the Fair Price Shop of the petitioner was suspended vide order dated 18.05.2007 and explanation was called. The comments of Block Development Officer Sandila, district Hardoi were also sought and he has submitted the resolution of the Gram Panchayat regarding cancellation of the licence of petitioner's Fair Price Shop.
Learned Standing Counsel further submitted that the opposite party no.2 after examining the entire record came to the conclusion that the allegations levelled against the petitioner were found proved and accordingly passed the order dated 18.05.2007 cancelling the licence of Fair Price Shop of the petitioner.
Sri Suresh Chandra Shukla, learned counsel for opposite party no.3 (new licensee) while opposing the writ petition submitted that the petitioner has committed several illegalities and irregularities in the distribution of essential commodities and several villagers have given statement on oath on 22.08.2006 before the Lekhpal regarding less distribution of quantity and charging of excessive money. The Sub-Divisional Magistrate, Sandila, district Hardoi after taking into consideration the complaint made by the villagers suspended the licence of Fair Price Shop of the petitioner. The petitioner was given opportunity to reply the charges but petitioner failed to deny the allegations, which were proved in the statement of the villagers.
Apart from this, in the open meeting of Village Panchayat dated 04.06.2007 a resolution was passed taking into consideration the complaint against the petitioner for cancellation of the licence of her Fair Price Shop and there is no illegality in the order dated 16.07.2007 as well as appellate order.
Learned counsel for the petitioner in his rejoinder reiterated his earlier submission that preliminary enquiry was done behind the back of the petitioner. The impugned order has been passed only relying on the said preliminary enquiry report and copy of the same was never served upon the petitioner. Even otherwise the opposite party no.2 after seeking an explanation of the petitioner has not bothered to conduct any enquiry and on the basis of preliminary enquiry report of the Supply Inspector, proved all the charges against the petitioner and thus, the impugned order has been passed in utter violation of principles of natural justice.
It is also submitted that there is nothing on record which shows that any review report (Samiksha Aakhya) was ever asked from the Block Development Officer. It is also not known that Block Development Officer was in any way authorized to call meeting of Gram Sabha and the meeting was validly convened and the concerned resolution was passed against the petitioner.
Learned counsel for the petitioner placed reliance on the judgments passed in Writ Petition No.1030 (M/S) of 2008; Bhaiya Lal vs. The Commissioner, Lucknow Division, Lucknow and another dated 18.11.2008 and Writ Petition No.1087 (M/S) of 2008; Munshi Lal vs. The Commissioner, Lucknow Division, Lucknow and another in which it has been held that non supply of the report relied upon to the petitioner suffers from illegal infirmities as well as violates the provisions of principles of natural justice.
I have considered the rival submissions of learned counsel for parties and gone through the record.
It is admitted position that while passing the impugned order the opposite party no.2 placed reliance on the preliminary enquiry report dated 18.05.2007 of Supply Inspector and copy of the same was not served upon the petitioner. The impugned order further reveals that all the charges were fund proved by the opposite party no.2 only on the basis of preliminary enquiry report. It is not disputed by the learned Standing Counsel that the opposite party no.2 only sought an explanation from the petitioner and no fact finding enquiry was done thereafter.
From perusal of the charges it also reveals that no specific charge has been levelled and the charges are vague in nature and without there being any supportive documents.
Normally, this Court does not interfere in the matter where the finding of fact is given by the authorities, but the present case is different as no specific finding with regard to any particular irregularity committed by the petitioner in distribution has been recorded by the authorities. Merely saying that the distribution is not being done properly would not be sufficient for passing an order cancelling the licence of the petitioner. The valuable rights of the petitioner flow from the licence which has been given in his favour and in case the same is to be cancelled or withdrawn, there should be sufficient reason for the same.
The Division Bench of this Court in the case of M/s Mahatma Gandhi Upbhokta Sahkari Samiti vs. State of U.P. and others reported in 2001 (19) SCD 513, held that when the report of enquiry has been relied upon by the authorities concerned, that report has to be furnished to the person who is effected by the same. The para-3 of the judgment reads as under:-
"3. It is the contention of the writ petitioner that no opportunity of hearing was given to the petitioner. That apart the petitioner was not supplied with the copy of inquiry report conducted by Sub-Divisional Magistrate dated 01.11.2000, upon which reliance was placed in the impugned order and that itself violates principles of natural justice. It appears to us from the impugned order itself that the concerned authority has taken into consideration the inquiry report of Sub-Divisional Magistrate dated 01.11.2000 but no copy of the same has been supplied to the writ petition which is essential requirement for following the principles of natural justice. It is well settled that when report of the inquiry has been relied upon by the disciplinary authority, that report has to be furnished to the person who is effected by the same. In that view of the matter, we are of the view that the impugned order suffers from the violation of the Principles of Natural Justice."
In the case of Rajpal Singh v. State of U.P. and others reported in 2008 (16) LCD 891, it has been held by this Court that non-furnishing of the inspection report of the Supply Inspector which was relied upon for cancellation of the licence, amounts to violation of principles of natural justice, hence, the order of cancellation as well as the appellate order was not sustainable in the eyes of law.
In the case of Dori Lal v. State of U.P. and others reported in 2006 (24) LCD 1121, it has been held that the order cancelling the licence passed without the petitioner being provided the copy of the resolution of the village Panchayat as well as the enquiry report, if any and without being afforded opportunity of submitting explanation and hearing, amounts to gross violation of principle of natural justice and, hence, the same deserves to be quashed.
The similar view has been expressed in Maiku Lal vs. State of U.P. and others reported in 2009 (27) LCD 1192, the observation in paras-13 and 14 reads as under:-
"13. The submission of the counsel for the petitioner finds force that the impugned order of cancellation has been passed on the basis of the inquiry report submitted by the Supply Inspector, the copy of which was not suppled to the petitioner due to which the petitioner was denied the proper opportunity of defence and it amounts to violation of principle of natural justice.
14. From perusal of the record, it is evident that the impugned order of cancellation dated 29.08.2001 was passed merely considering the reply submitted to the show cause notice by the petitioner and no opportunity of hearing was provided to the petitioner. The learned Commissioner while deciding the appeal filed by the petitioner against the order of cancellation of the Fair Price Shop did not properly consider the fact that the enquiry report which was the main basis for cancellation of the licence of Fair Price Shop was not provided to the petitioner and the petitioner did not get adequate opportunity of defence before passing of the impugned order dated 08.10.2001."
The Hon'ble Supreme Court in iota of cases has reiterated that a person who is put to any harm, he shall first be afforded adequate opportunity of showing cause. In D.K. Yadav vs. J.M.A. Industries; (1993) 3 SCC 259 the Hon'ble Supreme Court while laying emphasis on affording opportunity by the authority which has the power to take punitive or damaging action held that orders affecting the civil rights or resulting civil consequences would have to answer the requirement of Article 14. The apex court concluded as under:-
"The procedure prescribed for depriving a person of livelihood would be liable to be tested on the anvil of Article 14. The procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. Article 14 has a pervasive procedural potency and versatile quality, equalitarian in its sole and principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable, and not arbitrary, fanciful of oppressive."
In National Building Construction Corporation v. S. Raghunathan; (1998) 7 SCC 66, it was observed by the apex court that a person is entitled to judicial review, if he is able to show that the decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he is informed the reasons for withdrawal and the opportunity to comment on such reasons."
As has already been discussed above, in the present case the charges against the petitioner were absolutely vague. The reply submitted by the petitioner was not considered while passing the order, either by the Up-Zila Adhilari, Sandila, district Hardoi or by the appellate authority and merely saying that there were irregularities, without specifying any kind of irregularity and without holding proper enquiry, would not be a ground for cancelling the licence of the petitioner. The action of the opposite party no.2 of passing the impugned order without supplying the copy of the preliminary enquiry report while proving the charges against the petitioner on the basis of said enquiry report is hit by the grave legal infirmity and the whole action of the opposite party no.2 is in great disregard of the principles of natural justice.
So far as the grievance of the opposite party no.3 is concerned, he has no locus, as he was appointed during the period interregnum, when the appeal of the petitioner was pending and will only be a temporary arrangement, whether such arrangement was made by following due process of making regular arrangement or otherwise on the discretion of the opposite party no.2 and, as such, the opposite party no.3 has no locus to defend the order passed by the authorities.
In view of the above, the order of cancellation as well as the order passed by the appellate authority are not sustainable in the eyes of law.
Accordingly, the writ petition is allowed. The impugned orders dated 26.12.2007 and 16.07.2007 passed by the opposite parties no. 1 and 2 are set aside. The licence of the petitioner shall be restored without any delay. However, the present order will not prevent the opposite parties to take appropriate action strictly in accordance with law and it will be open for the opposite party no.2 to pass fresh order.
There shall be no order as to costs.