Ashok Kumar vs State of U.P. and others

Hon''ble Pankaj Naqvi, J.—Heard Sri M.K. Kushwaha, Learned Counsel for the petitioner and Sri J.N. Mishra, learned Standing Counsel for the Staterespondents.

The petitioner, a fair price shop dealer, has challenged the orders dated 23.8.2007 cancelling the licence of the petitioner and 28.7.2009 whereby appeal preferred by him has been dismissed.

Initially the licence of the petitioner was suspended on 23.6.207 primarily on the ground that the petitioner is a habitual offender in as much as, on an earlier occasion when certain irregularities were detected against the functioning of the petitioner as a dealer, he was let off by deducting Rs. 250/- from the security money deposited by him and a warning, and that even after partial forfeiture of security amount and warning, there has been no improvement in the services of the petitioner and that it has been found that petitioner is over charging. Although the order of suspension recites that one Smt. Premwati had made a complaint with regard to non distribution of sugar to her but from the record it transpires that sugar had been lifted by her and accordingly petitioner was called upon to submit his reply. In response to the aforesaid, the petitioner submitted his reply on 9.7.2007 wherein it was stated that all essential items are being regularly distributed and that he had also appended the relevant extracts of the disbursement register and also the certificate of the Pradhan concerned, in the said behalf.

The Licensing Authority vide its order dated 23.8.2007 has cancelled the licence of the petitioner on the basis of the complaints of those persons whose names had neither been disclosed in the order of suspension nor in any other document issued by the State authorities. Aggrieved against the said cancellation, the petitioner preferred an appeal which too has been dismissed by the order impugned.

The sole contention of the Learned Counsel for the petitioner is that once the petitioner had submitted his reply to the aforesaid show cause/suspension dated 23.6.2007, then it was incumbent on the part of the Licensing Authority to have decided the issue of cancellation only in respect of the issues raised therein i.e. in the order of suspension vis-a-vis the reply submitted by the petitioner.

On the other hand the learned Sanding Counsel has sought to justify the impugned orders on the facts of the present case.

The Licensing Authority has cancelled the licence of the petitioner on the basis of the complaints preferred by those persons whose names had not been disclosed to the petitioner at any stage of the proceedings. The names of following persons Smt. Ganga Devi W/o Balwant Singh, Sumer Singh S/o Karan Singh, Smt. Shiv Dhara W/o Vijay Singh, Smt. Urmila Devi W/o Kamal Singh, Premwati, Leelawati and Bachchoo Singh who are stated to have filed affidavits of complaints, had never been disclosed to the petitioner and therefore, the petitioner was deprived of contesting/controverting the allegations made in the said complaint/affidavits and therefore, the principles of natural justice were severely violated. Complaints/Affidavits of these persons surfaced for the first time only in the order of cancellation dated 23.8.2007 and the same never formed a part of the order of suspension dated 23.6.2007 or any show cause.

Be that as it may, the facts remains that both the impugned orders display total non application of mind in as much as, they have taken into consideration those materials which were not forming part of the original show cause/order of suspension and therefore, the impugned orders become vulnerable in law.

Accordingly, the writ petition succeeds and the same is allowed. The orders dated 23.8.2007 and 28.7.2009 are quashed. However, it shall be open for the respondents, if they so desire to proceed afresh in accordance with law against the petitioner.

No order as to costs.