Allahabad High Court
Ramesh Kumar vs Addl. Commissioner (Food) Devi ... on 9 October, 2017
Bench: Anant Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 6
Case :- MISC. SINGLE No. - 10765 of 2016
Petitioner :- Ramesh Kumar
Respondent :- Addl. Commissioner (Food) Devi Patan Gonda & Anr
Counsel for Petitioner :- Vijayendra Prakash Tripat,Anurag Srivastava,Rajesh Kumar Singh
Counsel for Respondent :- C.S.C
Hon'ble Anant Kumar,J.
(1) Heard learned counsel for the petitioner, learned Standing Counsel and perused the record.
(2) Instant writ petition under Article 226 of Constitution of India has been filed with the assertion that the petitioner was having a quota license and was running fair price shop since long in Village - Kathela, Talab, H/O Bataura Lohangi, Block - Haldharmau, Tehsil - Colonelganj, District - Gonda. Some complainants moved an application against the distribution of the petitioner, on the basis of which, a preliminary inquiry was conducted by the Regional Food Officer and the report was submitted before the Sub-Divisional Magistrate, Colonelganj, District-Gonda Opposite Party No.2, who had suspended the licence of the shop of the petitioner with immediate effect by order dated 20th July, 2014 and the petitioner was directed to submit his explanation regarding irregularities found in the said order (Annexure-3 to the writ petition). In respect of the said order, he submitted his explanation dated 06.08.2014, but Opposite Party No.1 had not found his explanation satisfactory and license of his was cancelled vide its order dated 17th March, 2015. Against the said cancellation order, an appeal being Appeal No.214 was filed before the Deputy Commissioner (Food), Devipatan Mandal, Gonda, which was also dismissed by the Appellate Authority.
(3) It is stated by learned counsel for the petitioner that the licence of fair price shop of the petitioner was cancelled but neither any separate show cause notice was given to him nor any inquiry was conducted and opportunity of hearing was also not granted as enumerated in Government Order dated 29th July, 2004, which is utter violation of principle of natural justice and the order impugned has been passed.
(4) On behalf of petitioner, a case law 2015(30) LCD 448; Shakir Ali V. Commissioner, Lucknow Division, Lucknow and others, has been cited, wherein this Court held as under:
"9. The Hon'ble Supreme Court in iota of cases has reiterated that a person who is put to any harm, he shall first be afforded adequate opportunity of showing cause. In D.K. Yadav Vs. J.M.A. Industries; (1993) 3 SCC 259 the Supreme 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."
10. In National Building Construction Corporation v. S. Raghunathan; (1998) 7 SCC 66, it was observed by the Apex Court 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.
11. While entertaining the writ petition, this Court, vide order dated 19.1.2007 provided that no fresh allotment of the shop in question shall be made. However, department will be at liberty to make an alternative arrangement of attaching the card-holders with any other nearby fair price shop.
12. In the instant case, admittedly, a copy of the report on which reliance was placed, was not furnished to the petitioner, therefore, the impugned orders suffer from the legal infirmities and have been placed in blatant disregard of the provisions of the natural justice. The appellate authority committed an error in not taking into account the settled principle of law relating to natural justice and dismissed the appeal.
This apart, another case law 2015(33) LCD 1262; Smt. Radha Devi V. State of U.P. and others, wherein, this court held as under:
"6. Having heard learned counsel for the petitioner and onn perusal of the record, I find that the orders impugned herein only record that it is quite possible that the dealer (petitioner) may have obtained the affidavits of the card holders to avoid the proceedings against her and as such, the dealer is guilty of committing breach of the terms of the licence. In the opinion of this Court, this observation is based on conjectures and surmises and the authorities are under obligation to consider the affidavits so submitted by the petitioner alongwith the reply to the charge-sheet."
(5) It is evident from the record that the fair price shop of the petitioner was suspended on 20th July, 2014 and cancellation order was passed on 17th March, 2015, in between the said period what was happened is not known, even in order dated 17th March, 2015, the same did not reflect. It is evident that opportunity of hearing was not given to the petitioner as enumerated in the U.P. Schedule Commodities Distribution Order, 2004 issued on 29th July, 2004. These facts were also not considered by the Appellate Court while deciding the appeal of the petitioner and without considering these things the appeal was also dismissed.
(6) In view of the aforesaid facts, it is evident that the impugned order suffers with manifest error of law and has been passed in utter violation of principle of natural justice and settled norms of law. This apart, Government Order dated 29th July, 2004 has also not been followed. Time and again this Court has emphasized opportunity of hearing in many case laws, but the order impugned does not reflect so.
(7) In view of above, the writ petition deserves to be allowed. Accordingly, the writ petition is allowed. Impugned order dated 7.4.2016 Passed by Opposite Party No.1 Additional Commissioner (Food), Devi Patan Mandal, Gonda and order dated 17.03.2015 passed by Opposite Party No.2 Sub-Divisional Magistrate, Colonelganj, District Gonda are set aside and the matter is remanded back to the authority concerned for deciding the matter afresh in the light of Government order dated 29th July, 2004 and the case laws cited above. It is made clear that the inquiry would be made within one month from the date of production of a certified copy of this order.
Order Date :- 9.10.2017
S. Kumar
