Rajnish Kumar, J. - The instant writ petition has been filed by the petitioner challenging the order dated 28.10.2017 passed by the Joint Commissioner (Food) Lucknow Mandal,Lucknow in Appeal No.D-168/2016 under Section 28(3) of U.P. Essential Commodities Distribution and Control Order 2004 and also to quash the order dated 20.06.2016 passed by the opposite party no.3, by means of which the license of fair price shop of the petitioner has been cancelled. The petitioner has further prayed for a direction to the opposite party to permit her to run the fair price shop of Village Panchayat-Rasoolabad, Block and Tehsil-Mahmoodabad, District-Sitapur.
2. The facts, in brief, for adjudication to the present controversy are that the petitioner was a licensee of Village Panchayat-Rasoolabad, Block and Tehsil-Mahmoodabad, District-Sitapur. She was running fair price shop of the Village Panchayat in question for the last several years. On the complaint made by some card holders, against the petitioner, an enquiry was conducted and after receipt of the enquiry report, the show cause notice was issued to the petitioner on 31.03.2016. The petitioner submitted a reply to the show cause notice by means of the letter dated 12.04.2016. Thereafter without considering the reply of the petitioner, the opposite party no.3 suspended the license of the petitioner by means of the order dated 20.06.2016 and called an explanation of the petitioner alongwith the evidence. The petitioner submitted her reply on 02.05.2016 to the opposite party no.3 alongwith the affidavit of certain card holders, who stated that they always lift their quota and the petitioner never take more money than the fixed rate. The petitioner also annexed the affidavits of certain BPL & APL card holders with the reply, who also stated that the petitioner always distributed the essential commodities and requested to restore the supply of the petitioner. The Sub-Divisional Officer, i.e, opposite party no.3,without conducting any enquiry and affording opportunity to the petitioner and considering the reply of petitioner, passed an order dated 20.06.2016 cancelling the license of the petitioner. The petitioner preferred an appeal before the Joint Commissioner(Food), Lucknow Mandal, Lucknow under Section 28(3) of the U.P. Essential Commodities Act. The appeal of the petitioner was also dismissed without considering the grounds taken by the petitioner, therefore the petitioner has approached this Court.
3. Heard learned counsel for the petitioner and learned Standing Counsel.
4. Submission of learned counsel for the petitioner is that on the complaint made by certain card holders, who are not the resident of the Village Panchayat of the petitioner, the enquiry was made on the back of the petitioner and on the basis of which, the show cause notice was issued to the petitioner on 31.03.2016. The petitioner had submitted her reply on 12.04.2016 but without considering the same and without affording any opportunity to the petitioner, the opposite party no. 3 suspended the license of the petitioner which indicates that the order was not passed by the opposite party no.3 after due application of mind.
5. While suspending the license of the petitioner, the explanation of the petitioner was called with evidence. In reply thereof, the petitioner had submitted her reply annexing therewith the affidavit of certain card holders,namely, Sharif Khan, son of Yusuf Khan, Sanjay, son of Lallu, Aladeen son of Mahboob, Ram Naresh son of Bhagwandeen, Sabir son of Mazid Jagdeyee wife of Bhagwandeen, Rakesh son of Bhagwandeeen, and Munir son of Gulam who unanimously stated that they always lift their quota and the petitioner never take more money than the fixed rate and the petitioner had also annexed the affidavits of certain BPL & APL card holders, who had also stated that the petitioner always distributed the essential commodities.
6. Thereafter without considering the reply of the petitioner in which it has been categorically stated that the complainants are not the residents of the Village Panchayat of the petitioner and holding any enquiry against the petitioner and without affording opportunity of cross examination and verifying the stock register and the card of the card holders and supplying copy of the enquiry report, the opposite party no.3 passed the impugned order dated 20.06.2016 and cancelled the license of the petitioner in an illegal and arbitrary manner under political pressure without application of mind. The order was passed in violation of the law laid down by this Court and the Government Order issued by the State Government bearing No. 2441/29.06.2014-300 Sa/03TC dated 16.10.2014.
7. Being aggrieved, the petitioner had approached to the respondent no.3-Joint Commissioner (Food), Lucknow Division,Lucknow by means of an appeal under Section 28(3) of the Essential Commodities Act but the appellate authority has also affirmed the order passed by the Sub-Divisional Officer in an arbitrary and illegal manner without considering the grounds raised by the petitioner and without considering the record, therefore the petitioner is constrained to approach this Court by means of filing the present writ petition.
8. Learned Standing Counsel on the basis of counter affidavit and supplementary counter affidavit filed before this Court submitted that the complaint was received against the petitioner on 01.03.2016, which was numbered as 30080716000154 in Tehsil Diwas, in which an enquiry was conducted by the Regional Food Officer, Mahmoodabad. The Enquiry Officer after conducting the enquiry submitted an enquiry report on the basis of which, show cause notice dated 31.03.2016 was issued to the petitioner by which she was directed to submit her reply alongwith the evidence within a week but she failed to do so. Therefore the license of the petitioner was suspended by means of the order dated 20.04.2016 and the petitioner was directed to submit her reply.
9. In response to which, the petitioner had submitted her reply on 02.05.2016. He further submitted that after perusal of the entire record as well as after giving appropriate opportunity of hearing to the petitioner, the license of the fair price shop of the petitioner was cancelled on 29.06.2016 in accordance with law and there is no illegality or infirmity in the same.
10. He further submitted that the reply submitted by the petitioner was duly considered by the competent authority and since there is no illegality or infirmity in the order cancelling the license of the petitioner, the appeal has also rightly been dismissed in accordance with law.
11. He further submitted that the petitioner had not cooperated in the enquiry. He had not provided the Stock register and Distribution register. Therefore neither the entries of the card holders could be scrutinized nor were those entries examined by the authorities at the time of passing of the order, therefore the ground taken by the petitioner that he was not afforded opportunity is mis-conceived and the writ petition has been filed on mis-conceived grounds, therefore it is liable to be dismissed with cost.
12. I have considered the submissions of the parties and perused the records.
13. Admittedly, a complaint was made against the petitioner in Tehsil Diwas. An enquiry was conducted. In pursuance of which a show cause notice was issued to the petitioner on 31.03.2016 and the petitioner had submitted her reply on 12.04.2016 but the opposite party no.3 without considering the same, suspended the license of the petitioner by means of the order dated 20.04.2016 stating therein that the petitioner has failed to submit any reply within the time granted by the show cause notice dated 31.03.2016. As per law laid down by a full Bench decision of this Court in the case of Puran Singh & Suresh Kumar vs. State of U.P. and Others, (2010) 2 UPLBEC 947 it is not mandatory to give opportunity of hearing, therefore the contention of the petitioner regarding violation of principles of natural justice in passing suspension order is not acceptable.
14. In pursuance of the suspension order dated 20.04.2016, by means of which the reply of the petitioner was called, the petitioner had submitted her reply specifically stating therein that the complainants are not the villagers of the Village Panchayat of the petitioner and one of the complainant has family enmity with the petitioner in regard to a land dispute but without considering the same and fixing any date for production of the documents, verifying the documents and affording opportunity of cross examination and hearing to the petitioner, the license of the petitioner was cancelled by means of the order dated 20.06.2016.
15. The Government on the basis of the order passed by this Court in Writ Petition No. 56415 of 2012(Smt.Leelawati Tiwari versus State of Uttar Pradesh and Others) passed on 15.09.2014 issued a Government Order dated 16.10.2014, a copy of which has been filed by the petitioner as S.A.1 to the supplementary affidavit in pursuance of Government Order dated 29.07.2004. The relevant paragraph 4 of which is extracted as under:
16. The aforesaid Government order specifically provides that while examining the complaints regarding irregularities in distribution of essential commodities, the entries made in the distribution register should also be tallied with the entries made in the card of the card holders. It has also been provided that while recording the statements of the complainants and other concerned parties, the opportunity of cross examination should also be provided.
17. In the present case, admittedly, no such opportunity has been provided to the petitioner. On repeated queries being made to the learned Standing Counsel that how the opportunity has been provided to the petitioner in accordance with Government Order dated 16.10.2014, learned Standing Counsel admitted that no opportunity has ever been provided to the petitioner for cross- examination. The copy of the complaint, enquiry report and other related documents, on the basis of which the order of cancellation has been passed, have also not been provided to the petitioner.
18. A Coordinate Bench of this Court in the case of Idrish versus State of U.P. and another,2018 36 LCD 1186 has held in paragraph 17 to 21 as under:-
"17. In Pooran Singh vs. State, (2010) 2 UPLBEC 947, a Full Bench of this Court has categorically held that paragraph nos. 4 and 5 of the Government Order dated 29.07.2004 contemplates a full fledged inquiry before the licence/ agreement of a fair price shop is cancelled. The Full Bench has held that as per the Government Order dated 01.07.2004 an opportunity of hearing is required before passing any order of cancellation.
18. In Writ C No. 3611 of 2014, Sanjay Kumar v. State , decided on 05.02.2016 a 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 fullfledged 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."
19. In Misc. Single Case No. 5520 of 2008, Laloo Singh vs. State, decided on 05.06.2015 a Single Judge of this Court has held as follows: "After peeping into the contentions of both the parties and the series of case laws, referred to above, I am of the considered opinion that the cancellation of a agreement/licence of a party is a serious business and cannot be taken lightly. In order to justify the action taken to cancel such an agreement/licence, 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. The non-supply of a document utilized against the aggrieved person before the cancellation of his allotment of fair price shop licence/agreement offends the well-established principle that no person should be condemned unheard. "
20. In Abu Bakar v. State of U.P. and Others., (2010) 80 AllLR 769, a Single Judge of this court has held as follows:
" In view of the settled legal position, I have no hesitation in holding that the cancellation of petitioner''s fair price shop agreement by respondent No. 3 in contravention of principles of natural justice cannot be sustained. Since the appellate authority failed to rectify the error committed by the licensing authority, respondent no. 3 the order of the appellate authority is also liable to be set aside alongwith the order of the licensing authority."
21. In view of the settled legal position mentioned above before passing the impugned order cancelling the licence/ agreement of fair price shop of the petitioner, the opposite parties were obliged to serve upon the petitioner a show cause notice/charge sheet requiring the petitioner to explain the charges leveled against him and thereafter the respondents were obliged to hold an inquiry against the petitioner before cancelling the fair price shop licence/ agreement of the petitioner. In the present case the respondents have failed to establish that any such attempt was made on their part. In the circumstances, the impugned orders cannot be sustained and are liable to be set aside."
19. Similarly in the case of Mohammad Eherar versus Additional Commissioner Judicial, Faizabad Division and Others,2017 35 LCD 459, this Court in paragraph 13 has held that the enquiry officer should have proceeded on the basis of evidence on record to come to conclusion as to whether the said charge is found proved or not. Relevant paragraph 13 is reproduced as under:-
"13. I am of the considered view that the enquiry officer should have proceeded on the basis of evidence on record to come to conclusion as to whether the said charge is found proved or not. It cannot be presumed that the charge is proved in case no reply has been submitted by the delinquent licencee in this regard. Moreover, it is to be observed that in case statement of any card holder is relied in the enquiry the said card holder is required to be examined in the enquiry and it cannot be presumed that the statement of card holder which was taken at the time of preliminary enquiry is correct as the said statement was taken behind the back of delinquent licencee and the said card holder has not been put to cross-examination and no opportunity was provided to the delinquent licencee in this regard. As such, the findings of the enquiry officer on the alleged charges as noted in the impugned order were totally perverse and are not sustainable in the eyes of law. The appellate authority has also failed to take into consideration this aspect of the matter and has proceeded to dismiss the appeal on presumptions. The appellate court order is also not sustainable in the eyes of law."
20. This Court in the case of Shakir Ali versus Commissioner, Lucknow Division, Lucknow and Others,2012 30 LCD 448 in paragraph 7 to 12 has held as under:-
7.In support of his argument, the copy of the report on which reliance is placed by an authority, it should be furnished to a person against whom order is passed, he has placed reliance on a decision of this Court in M/S Mahatma Gandhi Upbhokta Sahkari Samiti v. State of U.P. and Others, (2001) 19 LCD 513.
8. In M/S Mahatma Gandhi Upbhokta Sahkari Samiti v. State of U.P. and Others, (2001) 19 LCD 513 on which reliance has been placed by the learned counsel for the petitioner, the controversy was that the cancellation order was passed on the basis of inquiry conducted by Sub-Divisional Magistrate but the copy of the inquiry report on which reliance was placed was not furnished to the petitioner. A Division Bench of this Court comprising of Hon''ble Mr. Justice S.K Sen (the then Chief Justice) and Hon''ble Jagdish Bhalla, J. (as he then was) held that when report of 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 Principle of Natural Justice.
9. 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 v. J.M.A Industries Ltd. ., (1993) 3 SCC 259 the 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 Hon''ble 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 soul 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 or oppressive.
10. 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.
11. While entertaining the writ petition, this Court, vide order dated 19.1.2007 provided that no fresh allotment of the shop in question shall be made. However department will be at liberty to make an alternative arrangement of attaching the card holders with any other nearby fair price shop.
12. In the instant case, admittedly, a copy of the report on which reliance was placed, was not furnished to the petitioner, therefore, the impugned orders suffer from the legal infirmities and have been placed in blatant disregard of the provisions of the natural justice. The appellate authority committed an error in not taking into account the settled principle of law relating to natural justice and dismissed the appeal."
21. In view of above, I am of the considered opinion that the impugned order dated 20.06.2016 has been passed by the opposite party no.3 in gross violation of the principles of natural justice, law laid down by this Court as well as Government Order issued by the Government. On being challenged, learned appellate authority has also failed to consider the aforesaid aspect of the matter and the grounds raised by the petitioner in this regard. Therefore the order dated 28.10.2017 passed by the Joint Commissioner (Food) Lucknow Mandal,Lucknow in Appeal No.D-168/2016 under Section 28(3) of U.P. Essential Commodities Distribution and Control Order 2004 and also the order dated 20.06.2016 passed by the opposite party no.3, are not sustainable and are liable to be quashed. Accordingly the writ petition deserves to be allowed.
22. The writ petition is allowed.
23. The orders dated 28.10.2017 passed by the Joint Commissioner (Food) Lucknow Mandal,Lucknow in Appeal No.D-168/2016 under Section 28(3) of U.P. Essential Commodities Distribution and Control Order 2004 and the order dated 20.06.2016 passed by the opposite party no.3 are hereby quashed and the license of the petitioner is restored.
24. Liberty is granted to the opposite party no.3 to hold enquiry and pass order afresh as discussed above after affording opportunity to the petitioner in accordance with law expeditiously and preferably within a period of three months from the date of production of certified copy of this order.
25. No order as to costs.