Rajiv Sharma, J. - (1.) BY means of this writ petition, the petitioner has prayed for quashing the impugned orders dated 24.07.2008 passed by the respondent No. 2 and order dated 08.04.2006/19.04.2006 passed by the respondent No. 4 contained in Annexure Nos. 1 and 2 in the writ petition and also for issuing a writ in the nature of mandamus commanding the respondents not to give effect the aforesaid impugned orders as well as not to initiate the process for fresh allotment of shop. Heard learned Counsel for the parties.
(2.) THE petitioner is a Fair Price Shop licensee and the question involved in this case is as to whether non -furnishing the copy of the complaint or preliminary enquiry report or the inspection report or any other document, which has been utilized against the Fair Price Shop licensee while cancelling the licence, amounts to violation of principle of natural justice or not. The assertion of the petitioner is that the plea of opportunity of hearing and non -supply of relevant documents, which were taken into consideration by the Licensing Authority, was raised before the appellate authority but the same has not been dealt with in its correct perspective. According to State Counsel, to ensure proper distribution of essential commodities, which are bare need of the public they are to be distributed through the public distribution system for which Essential Commodities Act, 1955 was enacted by the Central Government. Pursuant to the powers conferred by the Public Distribution System (Control) Order, the State Government for maintaining the supplies of the food grains and other essential commodities and to secure equitable distribution and availability at fair price vide notification dated 20.12.2004, notified U.P. Schedule Commodities Distribution Order, 2004. This Distribution Order was notified by the State Government in exercise of the powers conferred under Section 3 of the Act of 1955 read with provisions contained in Public Distribution System (Control) Order, 2001. Apart from the U.P. Schedule Commodities Distribution Order, 2004 (in short referred to as the Distribution Order of 2004) which is w.e.f. 30.12.2004, the State Government issued a Government Order dated 29.7.2004 on the subject of monitoring/regulating various kind of procedures. Elaborating his arguments, State Counsel submitted that Clause -4 of the Distribution Order provides that a person granted fair price shop is to sign an agreement under sub -clause (3) for running the fair price shop before the competent authority prior to the coming into effect of the said appointment. Clause 25 provides observance of the conditions as the State Government stipulates whereas Clause 28(3) of the Order provides filing of appeal against the order of suspension or cancellation of the agreement. Thus a person appointed to run a fair price shop acts as an agent of the State Government, who is under an obligation to sign an agreement. The agent so appointed is under an obligation to maintain record of supply and distribution of scheduled commodities, maintenance of accounts, keeping of the registers filing returns and issue of receipt to Identity Card holder and other matters. In some of the writ petitions, it has been indicated in the counter affidavit that the cancellation of agreement relating to fair price shop is a non -statutory agreement and the orders regarding cancellation of non -statutory agreement are not amenable to writ jurisdiction before this Court. In this regard reliance has been placed on Gopal Das Sahu and another vs. State of U.P. and others;, 1991 All. L.J. 498 and Kallu Khan vs. State of U.P. and another (2008 (6) ADJ 443 (DB)) and other cases. Sri Rakesh Srivastava, Standing Counsel also contended that when a fair price shop licence holder commits irregularities or is found to have indulged in the activities in contravention to the licence of Fair Price shop dealer, his agreement/licence is suspended. Before passing order of suspension of the licence, there is no contemplation of any notice and opportunity. Adverting to the present cases, he submitted that the order of cancellation was passed after providing the licence holder an opportunity of hearing which would tantamounts to passing the order after observing the principles of natural justice and as such it cannot be said that there was any infirmity. He further submitted that the appeal has also been dealt with by the Appellate Authority in a proper manner and after recording cogent and plausible findings and only then, it was dismissed. Therefore, the writ petitions are liable to be dismissed on the aforesaid grounds. In Sri Pappu vs. State of U.P. and others (2000 (18) LCD 321) the question for consideration before the Division Bench was as to whether the writ petition is maintainable against the order of cancellation of fair price shop in view of the Full Bench decision of the Court in the U.P. Sasta Galla Vikreta Parishad vs. State of U.P. and others, 1993 (1) ALR 121. The Division Bench presided over by Hon'ble N.K. Mitra, Chief Justice (as he then was) while examining the amended provisions of U.P. Panchayat Raj Act in view of the Article 243G of the Constitution under which Gram Panchayat has been entrusted with the function of performing public distribution system, the Court while holding that writ petition is maintainable and observed in paragraph 9 of the report as under: - ...Allotment of fair price shop or its cancellation is now a statutory function of the Gram Panchayat Exercise of statutory power by Gram Panchayat for collateral purposes is interdicted by Article 14 of the Constitution. Arbitrary grant or cancellation of fair price shop is open to judicial review under Article 226. The Full Bench decision, reliance on which has been placed by the learned Single Judge in dismissing the writ petition as not maintainable, in our opinion, has been rendered obsolete in view of the constitutional and statutory amendments referred to above.
(3.) AFTER issuance of various other Government Orders, the matter again gained attention of this Court in re: Kallu Khan vs. State of U.P. and another [supra] before the Division Bench of this Court an objection was raised by the Standing Counsel placing reliance on the Full Bench judgment in U.P. Sasta Galla Vikreta Parishad (supra) that the right of petitioner being contractual in nature and not statutory, the remedy, if any lies, either by filing appeal before the appropriate authority as provided under the relevant Government Orders and for alleged breach of contract, the writ petition under Article 226 of the Constitution is not maintainable. The Division Bench after considering the Full Bench decision in U.P. Sasta Galla Vikreta Parishad, Sri Pappu vs. State of U.P. [supra], Harpal vs. State of U.P. and others, 2008 (3) ADJ 36 and various other cases, which has been relied by the State Counsel, observed in para. 59 of the report as under: - In view of the above discussion even if we come to the conclusion that as such the petitioner may not be non -suited on the ground that the writ petition is not maintainable yet it cannot be said that the Writ Court must entertain the writ petition whenever there is any complaint of breach of certain contractual rights. The legal position is otherwise. As observed by the Apex Court in Swapan Kumar Pal (supra) the scope of judicial review is only limited to interfere when there is any error in decision -making process and not otherwise. Even if the writ petition, as such, may not be dismissed on the ground that it is not maintainable yet we are of the view that in such matters exercise of discretion under Article 226 of the Constitution by entertaining writ petition would not be prudent unless it is shown that there is any violation of statutory provisions particularly when alternative remedy is available to the petitioner.;