Vishwa Nath vs Commissioner, Lucknow Division, Lucknow and Others

Sanjay Misra, J.—Heard learned counsel for the petitioner and learned Standing Counsel for opposite parties No.1 to 3.

The petitioner was a fair price shop licensee. His licence has been cancelled by the order dated 5.5.2003 passed by respondent No.2 and his appeal has also been dismissed by respondent No.1 by order dated 26.3.2004.

The petitioner has challenged the aforesaid two orders in this writ petition on the ground that the suspension order and the show cause notice dated 29.3.2003 did not indicate any such charge against him and only recital was that certain complaints were received from the villagers regarding irregularities in distributing the essential commodities. His contention is that in reply to the aforesaid show cause notice, the petitioner submitted the same on 8.4.2003 and thereafter, the impugned order of cancellation has been passed. Learned counsel for the petitioner contends that neither any enquiry was held nor the petitioner was given any opportunity to produce his record whereas the sole ground in the impugned order for cancelling his licence is that the petitioner did not produce the records alongwith his explanation which was indicative of the fact that the petitioner was avoiding an enquiry into the alleged irregularities. The appellate Court, according to him, has taken into consideration the earlier warning given to the petitioner wherein a sum of Rs.250/ was confiscated from the security. He submits that the said ground cannot be made a reason for cancellation of his fair price shop in pursuance of notice dated 29.3.2003. He further submits that since no enquiry has been conducted, therefore, the impugned orders are liable to be set aside and further that no finding has been recorded with respect to any irregularity alleged to have been committed by the petitioner in distribution of essential commodities.

Learned standing counsel has contended that from a perusal of show cause notice as also the order of cancellation of fair price shop, it is quite clear that the petitioner was required to submit the relevant register for enquiry alongwith his explanation. However, the petitioner did not furnish the required records and, therefore, there was no option with the authority but to proceed to pass an order of cancellation which was in pursuance of the complaints made by the villagers. He has referred to a complaint filed as Annexure No.6 to the writ petition to demonstrate that the complaint relates to irregularities in distribution of kerosene oil and ration to the villagers. Consequently, he submits that the impugned order of cancellation does not suffer from any error and the appellate Court has rightly affirmed the same. His contention is that even in the past the petitioner had been warned to improve his conduct however, it is quite clear that he is continuing to commit irregularities in spite of such warning.

Having heard learned counsel for the petitioner as well as learned standing counsel, the fact that no specific charge was made against the petitioner in the show cause notice dated 29.3.2003 cannot be denied. A perusal of the said notice indicates that the allegation is that the petitioner has prima facie committed a grave irregularity and the substance of the complaint has not been given in the show cause notice. Consequently, it can be concluded that the petitioner was not informed the specific irregularity alleged against him which he had to explain in his reply to show cause notice. The cancellation order dated 5.5.2003 indicates that sole reason therein is that he had committed irregularities which were required to be gone into by production of the registers by the petitioner. Respondent No.2 has found that although the petitioner has submitted his explanation but inspite of demand, he has failed to produce the relevant record. The conclusion of the respondent No.2 on these facts was that the petitioner is avoiding an enquiry and, therefore, he has proceeded to cancel the fair price shop licence of the petitioner. The appellate authority has affirmed the finding of the respondent No.2 and has further found that the petitioner had on an earlier occasion been given a warning however, he had not improved himself and, therefore, the order of cancellation was correct.

Learned counsel for the petitioner has placed reliance upon a decision of a Division Bench of this Court in the case of Sri Pappu v. State of U.P. and Others, 2000 (18) LCD 321, to contend that by virtue of amended Section 15 of the U.P. Panchayat Raj Act and a Government Order dated 19.8.1999 provided an enquiry by the Gaon Sabha prior to cancellation of a fair price shop licence was must. Upon a perusal of the said decision of this Court, it is seen that the Government Order dated 19.8.1999 has been quoted therein which prescribes the requirements prior to cancellation of fair price shop licence. Clause 13 of the aforesaid Government Order is relevant for the present writ petition is quoted hereunder:

From the perusal of various clauses of the Government Order, it is apparent that prior to cancellation of fair price shop licence, the Gaon Sabha has to make an enquiry and pass a resolution in open House. However, Clause 13 of the Government Order is relevant for the purpose of this writ petition inasmuch as the respondent No.2, SubDivisional Officer has proceeded to cancel the licence of the petitioner. From a perusal of the foresaid Clause 13, it is quite apparentthat apart from Gaon Sabha even the SubDivisional Officer has been empowered to cancel the licence of a fair price shop if grave irregularities are found therein. Consequently, the submission of learned counsel for the petitioner that an enquiry by the Gaon Sabha was necessary prior to cancellation of his licence, cannot be accepted on the strength of Clause 13 of the aforesaid Government order. However, upon going through the Government Order, it is seen that when the SubDivisional Officer exercises his power to initiate the proceedings for cancellation of fair price shop licence, he has to do so on the complaint where grave irregularities have been alleged. Consequently, when the grave irregularities have been alleged against the licensee, the SubDivisional Officer is required to investigate the matter. He has to conduct an enquiry and upon being satisfied with respect to the said grave irregularities, he can pass an order of cancellation.

Clause 13, therefore, has given power to the SubDivisional Officer but the power has to be exercised in accordance with law. A vague charge (in fact with no particulars) and an order without recording the finding on specific charges, is not within the power of the SubDivisional Officer. A presumption has been drawn that the petitioner is avoiding an enquiry by not producing the registers is not sufficient for SubDivisional Officer to cancel the licence. The SubDivisional Officer is seized with sufficient power to make investigation of shop and find out the grave irregularities which have been alleged against the petitioner. No such action has been taken by the SubDivisional Officer nor any specific incident of any grave irregularities has either been mentioned in the show cause notice nor in the impugned order nor in the appellate order. Upon going through Annexure6 to the writ petition which is alleged to be a complaint of the villagers, it will be seen that the same is also quite vague where it has been stated that the petitioner is committing irregularities in distributing kerosene oil and ration. According to the petitioner, even the said complaint was not given to him, hence he did not have any knowledge as to what charges he has to reply to. Consequently, the reply submitted by the petitioner on 8.4.2003 was as vague as the suspension order and the order of cancellation is equally vague with no finding on any specific charges whatsoever. For the aforesaid reasons, the impugned orders cannot be sustained.

The writ petition is allowed. The order dated 5.5.2003 passed by SubDivisional Officer, Sandila, District Hardoi as also the appellate order dated 26.3.2004 passed by the Commisisoner, Lucknow Division, Lucknow are quashed. Interim order, if any, is vacated. No order is passed as to costs.

(Petition allowed)