Idrish vs State Of U.P. And 2 Others
2016 Latest Caselaw 6646 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 
Court No. - 34
 
Case :- WRIT - C No. - 51790 of 2014
 
Petitioner :- Idrish
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- K.K. Rao
 
Counsel for Respondent :- C.S.C.
 
Hon'ble Rakesh Srivastava,J.

1. This writ petition has been filed challenging the order dated

13.04.2012 by means of which the licence of the fair price shop of the

petitioner was cancelled and the order dated 19.06.2014 by means of which

the appeal preferred by the petitioner against the order dated 13.04.2012

has been rejected.

2. The petitioner was the holder of a fair price shop licence. On

08.12.2011, on inspection, the fair price shop of the petitioner was found

closed by the Revenue Inspector. On the basis of the inspection report dated

09.12.2011, submitted by the Revenue Inspector, the Sub Divisional

Magistrate, Padrauna, District Kushi Nagar- the respondent no. 3 on

20.12.2011 passed an order whereby the aforesaid licence/ agreement of the

fair price shop of the petitioner was suspended. Subsequently, the

respondent no. 3 passed the impugned order dated 13.04.2012 cancelling the

licence/ agreement of the fair price shop of the petitioner. The portion of

the order dated 13.04.2012 to which the learned counsel for the petitioner

has drawn the attention of the Court is extracted below:

"xzke iapk;r csyok ?kkV fo0[k0& us0ukS0 ds mfpr nj fodzsrk Jh bn`'k dh

forj.k O;oLFkk dk vkSpd fujh{k.k forj.k fnol fnukad 08-12-2011 dks jktLo

fujh{kd dksVok }kjk fd;k x;kA jktLo fujh{kd dksVok dh tkWp ds nkSjku

nqdku cUn ik;h x;hA fodzsrk mijksDr }kjk forj.k dk dk;Z ugha fd;k tk jgk

FkkA ekSds ij mifLFkr xzke okfl;ksa }kjk crk;k x;k fd [kk|kUu dk forj.k ugha

gks jgk gSA fodzsrk ds laca/k esa mlds ?kj okyksa }kjk crk;k x;k fd dgha xkWo eas

x;s gSaA xzkeokfl;ksa us fodzsrk mijksDr }kjk nqdku ,oa mBku djds xkWo esa yk;s

x;s [kk|kUu ds laca/k esa vufHkKrk izdV dh x;hA fodzsrk mijksDr }kjk fu/kkZfjr

frfFk ij [kk|kUu @phuh dk forj.k dkMZ/kkjdksa esa u fd;k tkuk

'kklukns'[email protected];s x;s funsZ'kksa rFkk vko';d oLrq forj.k vkns'k 2004 dk mYya?ku

ekurs gq, fodzsrk mijksDr dk vuqca/k i= dk;kZy; vkns'k la[;k & 614 fnukad

20-12-2011 }kjk fuyafcr dj fn;k x;k rFkk fodzsrk ls [email protected];ferrkvksa ds

laca/k esa fyf[kr Li"Vhdj.k lqlaxr lk{;ksa lfgr ,d lIrkg ds vUnj izLrqr djus

ds funsZ'k fn;s x;sA fdUrq fodzsrk }kjk vkt fnukad 12-04-2012 rd Hkh viuk

Li"Vhdj.k fyf[kr vFkok ekSf[kd :i esa izLrqr ugha fd;k x;k gSA blls Li"V

gksrk gS fd fodzsrk dks mlds Åij yxk;s x;s vkjksi Lohdk;Z gS vkSj og bl laca/k

esa dqN ugha dguk pkgrkA fodzsrk dk ;g d`R; xaHkhj vfu;ferrk dk |ksrd gSA

vr% mijksDr ds n`f"Vxr Jh bn`'k mfpr nj fodzsrk xzke iapk;r csyok

fo0[k0&us0uh0 dk vuqcU/k i= tufgr ds n`f"Vxr tekur dh lEiw.kZ /kujkf'k

tCr djrs gq, fujLr fd;k tkrk gSA"

3. Aggrieved by the order dated 13.04.2012, the petitioner, preferred an

appeal before the Commissioner, Gorakhpur, Division-Gorakhpur- the

respondent no. 2 inter alia on the ground that neither the suspension order

dated 20.12.2011 nor any show cause notice/charge sheet was ever served

upon the petitioner and as such the order dated 13.04.2012 was passed in

gross violation of the principles of natural justice. On 19.06.2014, the

respondent no. 2 passed an order whereby the appeal preferred by the

petitioner was rejected. The relevant portion of the order dated 19.06.2014

is extracted below:

" mHk; i{kksa ds rdkZs rFkk i=koyh ij miyC/k vfHkys[kkas ls ;g Li"V gks jgk gS

fd mfpr nj fodzsrk }kjk fnukad 08-11-2012 dks forj.k gsrq fu/kkZfjr frfFk ij

fcuk fdlh lwpuk ds nqdku cUn dj nh x;h rFkk uksfVl cksMZ ij vius vuqifLFkr

u jgus dk dksbZ dkj.k vafdr ugh fd;kA jktLo fujh{kd }kjk tkap ds le;

mlds ?kjokyks ls iwNrkN es ;g Li"V ugh gqvk fd dksVsnkj dgk x;k gS ckn es

mlds }kjk vius yM+ds dh rfc;r [kjkc gksus ds dkj.k ckgj MkDVj dks fn[kkus

tkus dk dFku fd;k tk jgk gS rFkk bl lEcU/k esa MkDVj dk ipkZ vihy ds lkFk

lyaXu fd;k x;k gS] ijUrq ;g vk'p;Ztud gS fd fnukad 20-12-2011 dks

vihykFkhZ dh nqdku fuyfEcr gksus dh tkudkjh mls fnukad 12-04-2012 rd ugh

gks ikbZ vkSj og fuyEcu vkns'k ,oa vkjksi i= dh izrh{kk vius ?kj cSBdj djrk

jgkA fuyEcu vkns'k ds mijkUr vihykFkhZ ds mfpr nj nqdku dh vkiwfrZ ckf/kr

gks x;h] rks mls bl RkF; dk irk djuk pkfg;s Fkk fd D;ksa mldh vkiwfrZ ckf/kr

dh x;h gSA bl izdkj vihykFkhZ }kjk tkucw>dj pkj ekg rd viuk Li"Vhdj.k

voj U;k;ky; es izLrqr ugh fd;k tkuk vihykFkhZ dh dnk'k;rk ,oa euethZ ls

forj.k fd;k tkuk Li"V djrk gSA mijksDr vk/kkj ij ;g vihy cyghu gksus ds

dkj.k fujLr fd;s tkus ;ksX; gSA"

Hence this writ petition.

4. Learned counsel for the petitioner has submitted that the petitioner

was running the fair price shop since the last 20 years and there was no

complaint against him. It was on account of illness of his son, that the

petitioner was unable to open his fair price shop on 08.12.2011, however,

on 09.12.2011 and 10.12.2011 the petitioner distributed the essential

commodities to the card holders. Learned counsel has vehemently submitted

that the impugned order dated 13.04.2012, was passed by the respondent

no. 2 in gross violation of the principles of natural justice in as much as

neither any show cause notice/ charge sheet was served upon the petitioner

nor any inquiry was held in the matter and as such the impugned orders

were liable to be set aside.

5. Per contra, the learned Standing Counsel has supported the impugned

order and has submitted that in view of the circular dated 26.11.2011 of the

District Magistrate, Kushi Nagar, the petitioner was obliged to distribute the

essential commodities on eighth, ninth and tenth of every month but on

inspection on 08.12.2011 the fair price shop of the petitioner was found

closed and since the petitioner did not file his reply to the show cause

notice within the time mentioned therein, the licence/ agreement of the

petitioner has rightly been cancelled.

6. Heard learned counsel for the parties & perused the record.

7. To ensure proper distribution of essential commodities through public

distribution system, Essential Commodities Act 1955 (for short 'Act') was

enacted. In pursuance to the powers conferred by the Public Distribution

System (Control Order) 2001, the State Government notified the U.P.

Scheduled Commodities Distribution Order, 2004 (for short 'Distribution

Order, 2004'). As per the provisions of the Distribution Order, 2004 a fair

price shop licence holder was obliged to sign a fresh agreement. Clause 22

(1) of the draft agreement is extracted below:

"22- ¼1½ ;fn vkSj tc dHkh ,rn~ iwoZ mfYyf[kr 'krksZa vkSj izfrcU/kksa esa ls fdlh

dk Hkh vfHkdrkZ }kjk mYya?ku fd;k tk; [email protected] vuqikyu u fd;k tk; rks

l{ke izkf/kdkjh] fyf[kr :i ls Li"Vr% dkj.k crkrs gq, vfHkdrkZ }kjk tek

izfrHkwfr dh jkf'k vius foosdkuqlkj vkaf'kd vFkok lEiw.kZ :i ls 'kklu ds i{k esa

tCr dj ldrk gS vFkok bl vuqcU/k i= dks fuyfEcr djrs gq, vfHkdrkZ ds

fo:ö vxzsrj tkWp ,oa foHkkxh; dk;Zokgh la;ksftr djkdj izfdz;k esa yk ldrk

gS vkSj foHkkxh; dk;Zokgh dh izfdz;k esa vfHkdrkZ dks mlds fo:˜ lk{;ksa dk

voyksdu djus dk volj iznku djrs gq, vfHkdrkZ dks viuk i{k izLrqr djus

dk volj iznku djrs gq, xq.kkoxq.k ds vk/kkj ij fopkjksijkUr vfHkdrkZ dk

vuqcU/; fujLr rd dj ldrk gS rFkk lEiw.kZ izfrHkwfr jkf'k 'kklu ds i{k esa

tCr dj ldrk gSA""

8. A perusal of clause 22 (1) of the draft agreement mentioned above,

would show that before cancelling the licence/ agreement of a fair price

shop, the authorities are obliged to hold an oral inquiry strictly in

accordance with the procedure prescribed therein.

9. Apart from the Distribution Order, 2004 the State Government issued

a Government Order dated 29.07.2004, laying down the procedure for

suspending/ cancelling the fair price shop licence/agreement. Paragraph nos.

2, 4, and 5 of the said Government Order being relevant are being quoted

below:

"2. mDr i`"BHkwfe esa eq>s ;g dgus dk funs'k gqvk gS fd xzkeh.k ,oa 'kgjh {ks=ksa

dh mfpr nj dh nqdkuksa ds fuyEcu @fujLrhdj.k ds lEcU/k esa fuEu izfdz;k

dk ikyu fd;k tk,A

¼1½ mfpr nj dh nqdku dk fuyEcu ek= fdlh O;fDr dh f'kdk;r ds vk/kkj

ij ugha fd;k tk;A ;fn fdlh nqdkunkj ds fo:) fdlh lzksr ls f'kdk;r izkIr

gksrh gS rks igys mldh izkjfEHkd tkap djk;h tk,A ;fn izkjfEHkd tkap esa

nqdkunkj ds fo:) ,slh xEHkhj vfu;ferrk,a izFke n`"V;k fl) gks jgh gksa

ftuds vk/kkj ij nqdkunkj dh nqdku fujLr gksus dh lEHkkouk gks rHkh nqdku

dks fuyfEcr fd;k tk; vkSj lkFk gh lkFk nqdkunkj dks dkj.k crkvks uksfVl

tkjh fd;k tk, fd mldh nqdku D;ksa u fujLr dj nh tk,A ;fn izkjfEHkd

tkap esa ik;k tk; fd vfu;ferrk bruh xEHkhj ugha gS fd nqdku ds fujLrhdj.k

dh lEHkkouk gks rks dsoy dkj.k crkvks uksfVl tkjh fd;k tk;A fuyEcu

vkns'[email protected] crkvksa uksfVl ,d Lihfdax vkMZj gksuk pkfg, rFkk mlesa izkjfEHkd

tkap esa ik;h x;h mu lHkh vfu;ferrkvksa dk fooj.k gksuk pkfg, ftudk mRrj

nqdkunkj ls visf{kr gksA

¼2½ ¼d½ [kk| foHkkx ds vf/kdkfj;ksa @ ftyk iz'kklu ds vf/kdkfj;ksa @vU;

izkf/kd`r O;fDr;ksa }kjk mfpr nj dh nqdku ds vkdfLed fujh{k.k ds nkSjku ;fn

ik;k tkrk gS fd nqdkunkj }kjk dksbZ xEHkhj vfu;ferrk dh x;h gS rks Hkh

nqdku dks fu;qfDr vf/kdkjh }kjk vius foosd dk iz;ksx djrs gq, fuyfEcr fd;k

tk ldrk gSA

¼[k½ [kk| foHkkx ds vf/kdkfj;ksa @ ftyk iz'kklu ds vf/kdkfj;ksa @ vU;

izkf/kd`r O;fDr;ksa }kjk ;fn nqdkunkj dksbZ vfu;fer dk;Z] forj.k esa xM+cM+h ;k

vuqlwfpr oLrqvksa dh dkykcktkjh djrs gq, idM+k tkrk rks Hkh fu;qfDr vf/kdkjh

}kjk vius foosd dk iz;ksx djrs gq, nqdku dks fuyfEcr fd;k tk ldrk gSA

mDr ifjfLFkfr;ksa esa nqdku ds fuyEcu dh fLFkfr esa Hkh Lihfdax vkMZj ls

fuyEcu vkns'k tkjh fd;k tk;sxk ftlesa lHkh vfu;ferrkvksa dk mYys[k gksxk

rFkk nqdkunkj dks dkj.k crkvks uksfVl tkjh fd;k tk;sxk fd D;ksa u mldh

nqdku fujLr dj nh tk;A

4- fuyfEcr dh x;h nqdkuksa ds fo:) tkap dh dk;Zokgh vf/kdre ,d ekg esa

vfuok;Z :i ls iwjh dh tk;sxh rFkk tkap esa lEcfU/kr nqdkunkj dks lquokbZ dk

iwjk ekSdk fn;k tk;sxkA lEcfU/kr nqdkunkj dk ;g nkf;Ro gksxk fd og tkap esa

viuk iwjk lg;ksx ns rkfd tkap dk dk;Z tYnh ls tYnh ijw k fd;k tk lds rFkk

fu;qfDr izkf/kdkjh }kjk izdj.k esa xq.k&nks"k ds vk/kkj ij vfUre fu.kZ; fy;k tk

ldsA ;fn nqdkunkj }kjk tkap esa lg;ksx ugha fn;k tk jgk gks vkSj tkap esa

foyEc djus dk iz;kl fd;k tk jgk gks rks nqdkunkj dks bl vk'k; dk Hkh

uksfVl tkjh fd;k tk;sxk vkSj viuk i{k j[kus dk vfUre volj iznku fd;k

tk;sxkA

5- tkap dh dk;Zokgh vf/kdre ,d ekg esa iw.kZ djds fu;qfDr izkf/kdkjh }kjk

izdj.k esa vfUre fu.kZ; fy;k tk;sxk vkSj xq.k nks"k ds vk/kkj ij ,d Lihfdax

vkMZj tkjh fd;k tk;sxkA bl vkns'k esa ;g Li"V mYys[k gksuk pkfg, fd

lEcfU/kr nqdkunkj dks lquokbZ dk volj fn;k x;k vkSj mls lquk x;kA ;fn

nqdkunkj us tkap esa lg;ksx ugha fd;k gks vkSj lquokbZ ds volj dk tkucw>dj

mi;ksx u fd;k gks rks vfUre vkns'k esa bl ckr dk Hkh iwjk mYys[k gksuk pkfg,

fd nqdkunkj dks volj iznku fd;k x;k rFkk vfUre uksfVl fn;k x;k ijUrq

mlus tkucw> dj volj dk mi;ksx ugha fd;k vkSj tkap esa lg;ksx ugha

fd;kA""

10. As per clause 4 of the Government Order dated 29.07.2004, mentioned

above, before cancelling the fair price shop licence, the respondents are

obliged to hold an inquiry. As per the said clause, in case the licence holder

is not cooperating in the inquiry, the licencing authority is obliged to issue

a notice to that effect and afford a last opportunity to the licence holder.

11. In the case in hand, the petitioner has categorically stated in

paragraph no. 11 to 13 of the writ petition, that the alleged suspension

order/ show cause notice dated 20.12.2011 was never served upon the

petitioner and when he approached the authority concerned, the concerned

clerk informed the petitioner that the impugned suspension order/ show

cause notice had been sent to the petitioner by registered post. As the

suspension order dated 20.12.2011 was not served upon the petitioner, the

petitioner approached the authority concerned a number of times but the

suspension order/show cause notice was not supplied to the petitioner and as

such the petitioner could not file his reply, to the charges leveled against

him. Reply to paragraph nos. 11 to 13 of the writ petition is to be found in

paragraph nos. 12 to 14 of the counter affidavit. In the rejoinder affidavit,

the petitioner denied the averments made in paragraph nos. 12 to 14 of the

writ petition and reiterated the contents of paragraph nos. 11 to 13 of the

writ petition. Paragraph nos. 11 to 13 of the writ petition and 12 to 14 of

the counter affidavit being relevant are being reproduced here under:

Paragraph nos. 11, 12 & 13 of the writ petition:

"11.That when the petitioner comes to know that licence of his fair price

shop was suspended on 20.12.2011 by the Sub-Divisional Magistrate,

Padrauna, Kushi Nagar then he come to the office of Sub Divisional

Magistrate, Padrauna, Kushi Nagar for obtaining suspension order then

the clerk of supply department told to the petitioner that the aforesaid

suspension order dated 20.12.2011 passed by the Sub-Divisional

Magistrate, Padrauna, District Kushi Nagar has been sent to him

through registered post.

12.That the petitioner several times approached to the office of Sub

Divisional Magistrate, Padrauna, Kushi Nagar to supply the suspension

order dated 2012.2011 to explain the charge leveled against the

petitioner but the suspension order was not supplied to the petitioner,

therefore, due to this reason the petitioner has not filed any reply of

the suspension order or charge sheet issued by Sub Divisional

Magistrate, Padrauna, Kushi Nagar.

13.That it is pertinent to point out here that the petitioner has not been

supplied the copy of the suspension order of fair price shop of the

petitioner or charge sheet and until 12.4.2012 the petitioner has also

not informed by the authority through reminder. The petitioner waited

the supply of suspension order of fair price shop and charge sheet if

any, but uptill 12.4.2012 the suspension order and charge sheet was

not supplied to the petitioner by the authorities concern. "

Paragraph nos. 12, 13 & 14 of the counter affidavit:

"f,,- ;g fd ;kfpdk ds izLrj la[;k ff esa of.kZr dFku esa dguk gS fd ;kph

dk dFku fdlh lk{; ij vk/kkfjr u gksus ds dkj.k Lohdkj djus ;ksX; ugha

gSA ;kph }kjk viuh nqdku ds vuqca/k i= ds fuyEcu vkns'k fnukad 20-12-2011

dks izkIr u djus ds dkj.k Mkd }kjk Hkstk x;kA

f...- ;g fd ;kfpdk ds izLrj la[;k 12 esa of.kZr dFku vLohdkj gSA ;kph dks

;fn Mkd }kjk vkjksi i= @fuyEcu vkns'k izkIr u gqvk rks lEcfU/kr dk;kZy;

esa vkdj l{ke vf/kdkjh ls izkIr djuk pkfg;s FkkA ;fn mDRk vkns'k u izkIr

gksrk rks mPPk vf/kdkfj;ksa ds laKku esa yk;k tkuk pkfg;s] ijUrq ;kph ,slk u dj

euekus f+- ;g fd ;kfpdk ds izLrj la[;k 13 esa of.kZr dFku vLohdkj gSA bl izLrj

dk mRRkj iow Z esa of.kZr izLrj 03 es a of.kZr fd;k tk pqdk gSA"

12. A perusal of the impugned order of cancellation dated 13.04.2012

passed by the opposite party no. 2 would show that the fair price shop

licence/ agreement of the petitioner has been cancelled on the ground that

the petitioner did not submit his reply to the charges leveled against the

petitioner in the suspension order/ show cause notice dated 20.12.2011

within the time mentioned therein and as such the charges leveled against

the petitioner stood admitted.

13. It is the specific case of the petitioner that neither the impugned

suspension order dated 20.12.2011 nor the show cause notice/ charge sheet

was ever served upon him and as such the petitioner was unable to file

reply to the charges leveled against him. In paragraph nos. 12, 13 & 14 of

the counter affidavit a bald averment has been made by the respondents

that since the petitioner refused to receive the suspension order/ show cause

notice, the same was sent to the petitioner by post. The date on which the

petitioner refused to accept the notice, the date on which the suspension

order was sent to the petitioner by post is conspicuously missing. Though in

the counter affidavit the respondents have stated that the copy of the

suspension order/ show cause notice dated 20.12.2011 was sent to the

petitioner by registered post but no documentary evidence in support of

their averment has been annexed alongwith the counter affidavit.

14. The burden of proof as to any particular fact lies on that person who

wishes the court to believe in its existence, unless it is provided by any

special law that the proof of that fact shall lie on any particular person. The

burden of proof of the facts rests on the party who substantially asserts it

and not on the party who denies it.

15. In a writ petition or a counter affidavit not only the facts but also the

evidence as proof of such facts have to be pleaded and annexed to it. There

is nothing on record to show that the petitioner was ever furnished with the

suspension order or any show cause notice or a charge sheet requiring the

petitioner to meet the charges leveled against him. In view of the categorical

denial by the petitioner, the burden of proof that the suspension order/

show cause notice was served upon the petitioner was squarely on the

respondents, which they have miserably failed to discharge.

16. In the appeal preferred by the petitioner against the order dated

13.04.2012 the petitioner had categorically stated that neither the suspension

order dated 20.12.2011 nor any show cause notice/ charge sheet was ever

served upon the petitioner. The respondent no. 3 rejected the appeal of the

petitioner on the ground that the petitioner was aware of the suspension

order/ show cause notice and as such it was the petitioner who was obliged

to find out the charges leveled against him. The finding recorded by the

respondent no. 3 is absolutely perverse. In fact it was the respondent no. 2

who was obliged to serve the suspension order/ show cause notice/ charge

sheet upon the petitioner. The opposite party no. 2 has failed to address the

issue in right perspective and as such the order dated 19.06.2014 cannot be

sustained and is also liable to be set aside.

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. & Ors., 2010 (80) ALR 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.

22. For the reasons mentioned above, the writ petition is allowed. The

impugned orders dated 13.04.2012 passed by the Sub Divisional Magistrate,

Padrauna, District Kushi Nagar and the order dated 19.06.2014 passed by

the Commissioner Gorakhpur, Division-Gorakhpur, are hereby quashed. It is,

however, left open to the respondent no. 2 to pass a fresh order in the

matter in accordance with law.

Order Date :- 25.10.2016

Pradeep/Deepak