Laloo Singh vs State Of U.P.Through Its ...
2015 Latest Caselaw 841 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R
 
Court No. - 20
 

 
Case :- MISC. SINGLE No. - 5520 of 2008
 

 
Petitioner :- Laloo Singh
 
Respondent :- State Of U.P.Through Its Commissioner Devi Patan Gonda
 
Counsel for Petitioner :- Pawan Kumar Trivedi,Ajay Mishra,Ayodhya Prasad Singh,Manoj Kumar Singh,Piyush Kr. Singh
 
Counsel for Respondent :- C.S.C.,Suresh Tiwari
 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Petitioner, who is a fair price shop licensee of fair price shop situated in village panchayat Itahuva, Bloc Kaiserganj, District Bahraich, aggrieved by the order of cancellation of fair price shop license dated 16.07.2007 passed by Sub Divisional Officer, Kaiserganj, District Bahraich, preffed an appeal before the Commissioner, Devi Patan Mandal Gonda. The appeal No. 268/323 so preferred by the petitioner was rejected vide order dated 27.08.2008 passed by the Commissioner.

The aforesaid both the orders are under challenge in the present writ petition.

The main ground of attack of the petitioner's counsel is that the order of cancellation of fair price shop license was cancelled by the Sub Divisional Officer, Kaiserganj, without issuing any show cause notice or associating the petitioner in any manner in the enquiry. As would be evident from the perusal of the said impugned order dated 16.07.2007 that some enquiry was conducted by the Naib Tehsildar and on the basis of said enquiry, the Sub Divisional Officer passed the impugned order. No where in the said impugned order it has been mentioned that Naib Tehsildar while conducting enquiry has recorded the statement of the petitioner or issued any notice to him for putting his version.

Learned counsel for petitioner has contended that the Sub Divisional Officer, Kaiserganj, District Bahraich has committed manifest error in law by cancelling the license of fair price shop of the petitioner vide order dated 16.07.2007 without providing opportunity of hearing to the petitioner, as such, the impugned order has been passed in gross violation of principles of natural justice.

It has further been contended by the learned counsel for petitioner that the aforesaid plea of non-affording of opportunity and the order of cancellation being ex-parte was specifically raised before the appellate authority i.e. the Commissioner, Devi Patan Mandal, Gonda but the appellate authority rejected the appeal in a cursory manner without dealing with the pleas raised by the petitioner. Therefore, the appellate order is also bad in law and cannot be sustained.

On the other hand, learned standing counsel while defending the aforesaid two orders, submitted that the order of cancellation was passed by the Sub Divisional Officer, Kaiserganj, on the basis of report submitted by the Naib Tehsildar. It has also brought to the notice of the Court that the petitioner who was the licensee of the fair price shop, had suffered paralytic attack and was taking assistance of his son for running the shop. It has also been mentioned in the counter affidavit that the petitioner has committed irregularities in distribution of scheduled commodities.

Principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice. Inquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than decision in a quasi-judicial enquiry. [emphasis supplied]

Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statue or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression "civil rights" but of civil liberties, material deprivations and non-pecuniary damages in its wide umbrella comes everything that affects a citizen in his civil life.

In D.K. Yadav Vs. J.M.A. Industries; (1993) 3 SCC 259 the Apex 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."

In National Building Construction Corporation v. S. Raghunathan; (1998) 7 SCC 66, the Apex Court in unequivocal words 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.

In M/s Mahatma Gandhi Upbhokta Sahkari Samiti vs. State of U.P. and others 2001(19)LCD 513 the controversy involved was that the order of cancellation 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 held that when report of inquiry has been relied upon, that report has to be furnished to the person, who is affected by the same.

The said legal position has been reiterated and followed in a number of decisions rendered by this Court. In the case of Dori Lal vs. State of U.P. and others 2006(24)LCD 1521, 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 order is liable to be quashed.

In Rajpal Singh vs. State of U.P. and others 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 principle of natural justice, hence, the order of cancellation as well as the appellate order was not sustainable in the eyes of law.

Recently, a co-ordinate bench of this Court in Sita Devi vs. Commissioner, Lucknow & others [2011(29) LCD 626] held that the action of the authority in passing the order of cancellation 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 whole action of the authority is in great disregard of the principles of natural justice.

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.

Thus from the series of decisions, referred to hereinabove, it clearly comes out that the preliminary enquiry report, inspection report or complaint or any other document which is utilized by the authority while cancelling the licence of a fair price shop licence, same has to be supplied to the licence holder and personal hearing is also to be afforded otherwise the proceedings would be in blatant disregard of the principles of natural justice. Here in the present case, it is not the case of the opposite parties that copy of the report submitted by the Nayab Tehsildar was supplied to the petitioner but he failed to submit his version. Needless to say, once again, that every order which entails civil consequences, must be in consonance with the principles of natural justice. The petitioner raised a plea of violation of principles justice before the appellate authority too but the same was not dealt with in a just and proper manner by the appellate authority causing serious prejudice to the petitioner. Therefore, not only the order of cancellation but also the order of appellate authority suffers from legal infirmities and cannot be sustained. It may be clarified that counsel for petitioner has attacked the impugned order on various other grounds, but as the order is faulty being in blatant disregard of the principles of natural justice, I refrain my self from dealing other grounds.

In view of the above, the impugned order dated 27.08.2008 passed by the appellate authority and the order of cancellation of fair price shop license dated 16.07.2007 are hereby quashed. Needless to say that this order shall not preclude the competent authority from passing appropriate order in accordance with law.

The writ petition stands allowed in above terms.

Order Date :- 05.06.2015

Vijay