Allahabad High Court
Amin Ansari vs State Of U.P. And 3 Others on 17 March, 2023
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 6
Case :- WRIT - C No. - 12394 of 2021
Petitioner :- Amin Ansari
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Vishal Tandon
Counsel for Respondent :- C.S.C.,Adya Prasad Tewari
Hon'ble Pankaj Bhatia,J.
The present petition has been filed challenging the order dated 14.04.2020 whereby the fair price shop licence of the petitioner was cancelled, and remand as well as the order dated 30.12.2020 whereby the appeal preferred by the petitioner was dismissed.
The fact in brief are that the petitioner was allotted a fair price shop licence for running a shop at Kushi Nagar. On 06.04.2017, some complaint was made against the petitioner in pursuance whereof an inspection was held on 12.04.2017 wherein certain statement of the card holders were recorded. On the basis of inquiry report dated 12.04.2017, the shop of the petitioner was suspended on 15.04.2017, and a show cause notice was issued to the petitioner (Annexure 1). The petitioner did not file any reply to the said show cause notice as he was unwell which led to the passing of the order dated 16.06.2017, quashing the allotment based upon the enquiry report dated 12.04.2017. The petitioner preferred an appeal challenging the order dated 16.06.2017. However, the same was dismissed on 12.01.2018. Challenging the said two orders, petitioner preferred a writ petition before this Court being Writ Petition No. 12454 of 2018 (Amin Ansari Vs. State of U.P. and 3 others) which was allowed vide order dated 18.04.2018. The impugned orders were quashed and the matter was remitted to the appellate authority for hearing the appeal as fresh.
In terms of the remand order passed by this Court, the appellate authority heard the appeal and vide its order dated 16.10.2018, set aside the cancellation order dated 16.06.2017 and remanded the matter before the licensing authority to pass a fresh order after giving an opportunity of hearing.
In pursuance to a remand, the licensing authority issued a fresh show cause notice on 28.11.2018 (Annexure 6), in terms of the averments contained in the show cause notice. The petitioner was called upon to avail a reply. The petitioner filed a reply and denied the allegations levelled in the show cause notice along with the said reply. The petitioner annexed the affidavits as many as 25 card holders to substantiate his objection. The licencing authority instead of deciding the issue based on the allegations levelled against the show cause notice proceeded to hold enquiry in respect of affidavits filed by the petitioner counsel after the submission of the reply on 22.08.2019 and once again proceeded to hold a similar enquiry on 22.02.2020. The licencing authority instead of deciding the issue based on the allegations levelled in the show cause notice and its reply submitted by the petitioner proceeded to pass a cancellation order, on the foundation of the material gathered in subsequent enquiry which were got conducted on 22.08.2019 and 22.02.2020. The petitioner preferred an appeal which too was dismissed.
The contention of the counsel for the petitioner is that the order passed by the licencing authority is not only arbitrary but also against the principle of natural justice, and is also violative of the guidelines issued by the State Government itself through Government order dated 05.08.2019. He argues that the fresh enquiry report conducted after the submission of reply to the show cause notice, is neither contemplated under the Government order nor is specified in any rule and as such the order is liable to be set aside on that ground along.
Shri A.P. Tiwari appears before this Court on behalf of the person who was appointed after the termination of the licence of the petitioner and claims that he has a right to be heard. He fairly states that the allotment of the client of Shri Tiwari was subject to the outcome of litigation. However, he still argues that the petitioner has a right to be heard in the light of law laid down by the Supreme Court in the Case of Ram Kumar Vs. State of Uttar Pradesh and Ors. (Civil Appeal No. 4258 of 2022). Dealing with the said submission as argued by Shri Tiwari, the submission is not acceptable as the foundation of the judgement of Supreme Court in the case of Ram Kumar (Supra) is contained in Para 11 of the said judgment, it was clearly observed that the appellant before the Hon'ble Supreme Court was a regular appointee whereas the appointment of the client of Shri Tiwari is a contingent allotment which is dependent upon and is subject to outcome of the litigation instituted by the regular allottee i.e. the petitioner hearing. The Supreme Court noticed the said difference and differed from the earlier judgment in the case of Poonam Vs. State of Uttar Pradesh & Ors. (2016) 2 SCC 779, mainly on the foundation that the appellant before the Supreme Court was a regular allottee and the appellant before the Supreme Court in the case of Poonam (Supra) could not establish his right independently. In the present case, the judgment of the Supreme Court in the case of Poonam (Supra) would be applicable as the allotment is a contingent allotment. As such, I have no hesitation in holding that the client of Shri Tiwari has no locus to participate in the present proceedings and non-impleadment in the present petition is not fatal.
Considering the arguments raised by the petitioner, the petition is liable to be allowed as the impugned order is clearly in violation of principles of natural justice, being founded upon two inquiries which were got conducted after the reply was filed by the petitioner to the show cause notice, there being no such provision nor anything to suggest that the petitioner was confronted with the information collected on 22.08.2019 and 22.02.2020, the exercise which led to the passing of the cancellation order was clearly arbitrary and is liable to be set aside as being in violation of principles of natural justice. The appellate order demonstrate non-application of mine and does not consider any of the aspects as recorded above, as such, the same is also not sustainable and is liable to be set aside.
The writ petition is allowed. The impugned orders dated 14.04.2020 and 30.12.2020 are quashed.
The respondents are directed to ensure the restitution of the petitioner the shop in question with all expeditions preferably within a period of four weeks from the date of production of a certified copy of this order.
Order Date :- 17.3.2023
Ashutosh
