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Om Prakash v. State Of U.P. Thru' Chief Secy. & Others - WRIT - C No. 64355 of 2005 [2005] RD-AH 5874 (17 November 2005)


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Writ Petition No.  64355 of 2005

Om Prakash                                           petitioner


State of U.P. & others.                           Respondents



Hon. Sushil Harkauli, J.                                  

Hon. Vikram Nath,J.

This petition has been filed with the prayer to quash the order dated 26.07.2005 (Annexure 3 to the writ petition) passed by the Sub Divisional Magistrate, Jasrana, District Firozabad (respondent no. 2), whereby the licence of the petitioner for running a Fair Price Shop has been suspended and the card holders have been adjusted to a neighbouring fair price shop. A perusal of the impugned order indicates that in an inquiry, made upon a complaint, it has been found that even though the petitioner had received the essential commodities from the government godown, but had not distributed the same to the BPL card holders and further that upon prima facie case having been made out an FIR was also registered against the petitioner under sections 3/7 of the Essential Commodities Act.

Under the relevant Government Orders  against the order of suspension of a fair price shop licence an appeal lies before the Commissioner of the Division. The petition is  therefore, liable to be dismissed on the ground of alternative remedy.

This petition was taken up for arguments on 04.10.2005 when the learned counsel for the petitioner had submitted that his licence could not have been suspended without affording opportunity of hearing and, therefore the impugned order being in violation of principles of natural justice was not sustainable. In support of his contention learned counsel for the petitioner had relied upon two decisions. Not convinced with the arguments, the Court was inclined to dismiss the writ petition, when the counsel for the petitioner sought time to further study the matter. The following order was passed on 04.10.2005.

"The learned counsel for the petitioner has relied upon the following decisions in support of his argument that fair price shop license cannot be suspended pending inquiry, unless an opportunity of hearing is given to the licensee.

(1) Pappu vs. State of U.P. and others reported in 2000 (1) AWC 1

(2) Naumi Rav vs. Dy. Collector and others reported in 2001 (1) AWC 607.

He wants to examine the matter further on the question whether fair price shop license can be suspended without affording opportunity of hearing or opportunity of hearing is mandatory before suspending fair price shop license.

Prima facie, we are of the opinion that if the contention of the learned counsel for the petitioner is accepted and issue of show cause notice and inquiry thereon is made pre-requisite before passing the order of suspension, then there would be no occasion of passing a suspension order, because at this stage final cancellation order would be passed if the explanation of the licensee is not found satisfactory.

Put up day after tomorrow."

When the matter was taken up again on 20.10.2005 nothing additional of substance was argued and again reference was made to the same two judgments mentioned in the order dated 04.10.2005.

Both the said decision relied upon by the petitioner are on different issues and do not at all apply to the present case. In the case of Naumi Ram (supra) the Sub Divisional Officer had passed an order stopping the supply of the fair price shop dealer, on a mere complaint without directing for any inquiry, whereas in the present case the order of suspension was passed pursuant to a preliminary inquiry and an FIR has also been lodged against the petitioner and further a show cause notice has also been issued by the Deputy Collector, Jasrana on 05.08.2005 calling upon the petitioner to submit his reply (Annexure 5 to the writ petition). It appears that the petitioner has submitted his reply to the show cause notice on 08.08.2005 (Annexure 6 to the writ petition), therefore, the judgment of Naumi Ram having been passed on different facts and not being a case of suspension does not apply to the present case and is of no help to the petitioner.

The other case of Pappu (supra) relied upon by the counsel for the petitioner also being on different facts does not help the petitioner in as much as it was not a case of suspension but was a case of cancellation of fair price shop licence without inquiry into the complaint and in such situation the Division Bench held that resolution of the Gram Panchayat canceling the licence without inquiry can not be sustained and further directed that the Gram Panchayat should take a decision after holding a proper inquiry.

The contention of the petitioner therefore fails and the writ petition is accordingly dismissed.

However, in view of the fact that the petitioner has already submitted his reply to the show cause notice, the Deputy Collector Jasrana, will pass final orders after considering the show cause of the petitioner within a period of two months from the date of production of certified copy of this order.

Dtd. 17.11.2005.

v.k.updh. (136)


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