Allahabad High Court
Pratima Tiwari vs State Of U.P. Thru ... on 21 July, 2015
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 10
Case :- MISC. SINGLE No. - 4155 of 2015
Petitioner :- Pratima Tiwari
Respondent :- State Of U.P. Thru Prin.Secy.Deptt.Of Food & Civil And Ors.
Counsel for Petitioner :- Nagendra Bahadur Singh
Counsel for Respondent :- C.S.C.,M.A. Khan
Hon'ble Rajan Roy,J.
Heard learned counsel for the petitioner as well as learned Additional Chief Standing Counsel for opposite parties and Sri Mohd. Arif Khan learned Senior Advocate assisted by Sri Mohd. Aslam Khan who has put in appearance on behalf of the Caveator.
Sri Mohd. Arif Khan submitted that his client has filed a Caveat, but has not been impleaded as a party in the writ petition. He informed the Court that his client was a subsequent allottee and the said allotment is a subject matter of the challenge in the Writ Petition No. 5919 (M/B)/2015 Basant Kumar Vs State.
Be that as it may, the subsequent allottee has no right to oppose this petition initiated by the petitioner asailing the cancellation of his licence and appellate orders passed in respect thereof. The caveator may pursue his rights in the aforesaid writ petition, but he has no locus in this case.
The contention of learned counsel for the petitioner is, firstly, that earlier when the licence of the petitioner had been cancelled and the appeal had been dismissed he had approached this Court by means of writ petition No. 5220 (M/S)/2012, which was allowed vide judgment dated 5.7.2013 quashing the impugned orders in view of law laid down by this Court in writ petition No. 4011 (M/S)/2010 (Ram Kripal Yadav Vs. State of U.P. and others) vide judgment dated 5.5.2011. In the latter judgment it has been held by this Court that prior to taking any such action the preliminary enquiry report, inspection report or complaint or any other document, which is utilized by the authority while cancelling the licence of fair price shop, have to be supplied and personal hearing is also to be offered, otherwise the principles of natural justice would be violated. He contends that the petitioner was neither associated with any of the two inquiries which were made the basis for the impugned action nor the inquiry reports were furnished nor the complaint was furnished nor he was given opportunity of personal hearing, therefore, the impugned orders are liable to be quashed. The appellate authority failed to appreciate this aspect of matter and dismissed the appeal at the admission stage without considering the pleas raised by the petitioner. He submitted that detailed reply was submitted to the Show Cause Notice issued to him annexing therewith relevant documentary proof which have not been considered.
Having heard learned counsel for the parties and perused the record, I find that the petitioner while submitting his reply to the Show Cause Notice vide Annexure No. 13 to the writ petition has extensively referred to the two enquiry reports and in light thereof has submitted his reply. A perusal of the reply submitted by the petitioner shows that he was very well aware of the allegations levelled against him which were required to be replied by him as also the contents of the inquiry reports and other material against him. Similarly a perusal of the Appeal of the petitioner also shows reference to the inquiry reports in various paragraphs. The inquiry reports have been annexed to the writ petition. An application of the complainant has also been annexed. There is no explanation offered in the writ petition as to when and how these documents came into the possession of the petitioner. All that has been said in the writ petition is that these documents were not furnished to him. The material on record shows that the petitioner was very well aware of the facts which he was required to meet.
In these circumstances no prejudice can be said to have been caused to the petitioner nor any violation of the principles of natural justice. The petitioner failed to show any requirement in law for the presence of the licence holder or grant of opportunity of hearing to him during a preliminary inquiry.
Nevertheless, an inspection of the shop, physical verification of the stocks is necessary by the Inquiry Officer, therefore, by implication, the presence of the licence holder at the time of such inspection is also to be presumed. First Inquiry Report shows that an attempt was made to serve the notice of inquiry upon the petitioner but it could not be served. The petitioner on her part says that she had gone to Allahabad along with her husband. In the Second inquiry a notice dated 22.9.2014 is said to have been sent but the petitioner denies the same.
Be that as it may, a perusal of the impugned order passed by the Sub Divisional Magistrate, Pratapgarh reveals that he has taken into consideration all documentary proofs submitted by the petitioner along with his reply though he has not considered the contentions in great detail, but it cannot be said that he has passed the order without any application of mind. Such orders are not expected to be like judgments of a Court. Likewise the appellate authority has also passed an order affirming the order of the licencing authority after taking into consideration the reply submitted by the petitioner and the pleas taken in appeal though the appellate order also does not contain a detailed consideration of the pleas raised in the appeal but it cannot be said to be an unreasoned order.
Considering the facts that the petitioner was not present at the time of earlier inquiry and could not produce the original records and the contentious and factual nature of the case the ends of justice would be met if the licencing authority is ordered to be hold a post decisional inquiry in respect of the fair price shop of the petitioner by inspecting the records required to be maintained by her as per rules, recording of statements of the Card Holders as far as possible, opportunity of hearing to the petitioner and examination of relevant material, with sufficient prior notice and, based thereon he shall take decision in the matter as to whether the order of cancellation of licence is liable to be maintained or not.
The order dated 23.1.2015 passed by the licencing authority shall abide by the fresh decision to be taken by the S.D.M. concerned. While taking the decision as aforesaid he shall not be influenced in any manner by the appellate order dated 15.5.2015 in this regard. Needless to say that the existing arrangement relating to the fair price shop in question shall continue subject to the decision to be taken by the licencing authority. Such decision shall be taken within 2 month from the date a certified copy of this order is produced before him.
Writ petition is disposed of with the aforesaid observations.
Order Date :- 21.7.2015
Arvind
