- (1.) B. S. Chauhan, J. This writ petition has been filed for quashing the impugned suspension order passed by Sub-Divisional Magistrate, Maharajganj and for directing the Divisional Commissioner, Gorakhpur Region, Gorakhpur to decide the appeal.
(2.) THE facts and circumstances giving rise to this case are that the petitioner is a licensee of fair price shop. THE Sub- Divisional Magistrate (respondent No. 3) vide order dated 28-11-2006 suspended the said licence/agreement. Being aggrieved, petitioner filed Appeal No. 12/m of 2006 before the respondent No. 2, wherein, vide order dated 15-12-2006, passed by the respondent No. 2, the suspension order dated 28-11-2006 has been kept in abeyance. However, the appeal has not been decided. Hence, this petition. Shri Krishna Nand Yadav, learned Counsel for the petitioner has raised large number of issues and submitted that the order of suspension dated 28-11-2006 is liable to be set aside on the ground that the said order had been passed without giving any opportunity of hearing to the petitioner. In support of his submission Shri Yadav has placed a very heavy reliance on the judgments of this Court in Shiv Raj Singh v. State of U. P. & Ors, 2006 (3) JCLR 606 (All) : (2007) 1 AWC 54; and Suresh Kumar Gupta v. State of U. P. & Ors. , 1999 (2) JCLR 1022 (All) : 2000 R. J. 334. It is submitted that in these judgments the Division Benches of this Court have held that the suspension order cannot be passed without giving opportunity of hearing to the licensee/agent. We have examined the submissions made by the learned Counsel for the petitioner. The judgment in Suresh Kumar Gupta (supra) has been delivered against the order of cancellation of the licence of fair price shop, granted under the provisions of Essential Commodities Distribution Order, 1990 (hereinafter called the Distribution Order 1990 ). In the said case no specific period had been prescribed in the show cause notice for submitting the reply. Order of cancellation in such a fact- situation, was held to have been passed in violation of principles of natural justice. Therefore, the facts of the said case were completely distinguishable, and thus the ratio of the said judgment has no application in the facts of the present case.
(3.) THE judgment in Shiv Raj Singh (supra) has been delivered by Division Bench of this Court holding that licence of a fair price shop cannot be cancelled without giving opportunity of hearing to the agent. THE said judgment has been delivered placing reliance upon the earlier Division Bench judgment of this Court in Ganesha v. District Magistrate, Mahoba & Anr. , 2001 (2) JCLR 88 (All) : (2001) 2 AWC 996, which was delivered dealing with suspension of the licence issued under the provisions of U. P. Scheduled Commodities Dealers (Licensing & Restriction on Hoarding) Order, 1989 (hereinafter called the Order 1989 ). THE licence of a fair price shop in Shivraj Singh's case had been granted under the provisions of Distribution Order 1990 and not under the provisions of Order 1989. Shiv Raj Singh's case was decided on 11th October, 2006. THE Court was not informed, while deciding the said case, that the Government Order 1990 had been repealed by the U. P. Scheduled Commodities Distribution Order, 2004, and therefore, the Order 1990 was not in force. It had also not been pointed out that the ratio of Ganesha (supra) was not applicable, for the reason that the Order 1989 contained a provision putting a condition precedent for suspension to give an opportunity of hearing under clause (8) thereof. THE said provisions were not applicable in the case of Shiv Raj (supra ). Clause 8 (2) of the Order 1989 reads as under : "8 (2) If the licensing authority is satisfied that any such licensee or his agent or servant or any other person setting on his behalf has contravened any provision of this order or the terms and conditions of the licence, it may without prejudice to any other action that may be taken against him by order in writing cancel or suspend his licence either in respect of all scheduled commodities covered by it or in respect of such of these commodities as it may think fit. Provided that no order shall be made under this sub-clause unless the licensee has been given a reasonable opportunity of stating his case against the proposed cancellation or suspension as the case may be. " (Emphasis added) Thus, it is evident that giving an opportunity of hearing before passing the order of suspension is mandatory in a case where the licence has been granted under the Order 1989. The said Order 1989 does not apply to fair price shops. No provision analogous to the same has been brought to our notice in Government Order 1990. Even if such a provision was there, Shivraj Singh's case ought to have been decided by making reference to the Government Order 2004. The relevant provisions of the Government Order 2004 are as under : "3. Setting up of fair price shop.- With a view to effecting fair distribution of Scheduled Commodities the State Government may issue directions under Section 3 of the Act to set such number of fair price shops in an area and in the manner as it deems fit. 4. Running of fair price.- (1) A fair price shop shall be run through such person and in such manner as the Collector, subject to the directions of the State Government may decide. (2) A person appointed to run a fair price shop under sub-clause (1) shall act as the agent of the State Government. (3) A person appointed to run a fair price shop under sub-clause (1) shall sign an agreement, as directed by the State Government regarding running of the fair price shop as per the draft appended to this order before the competent authority prior to the coming with effect of the said appointment. 21. Monitoring in accordance with the order issued by the State Government.- (1) A Food Officer shall ensure proper monitoring of fair price shops and prescribe model sale register, stocks register and ration card register in accordance with the order issued by the State Government. 22. Power of entry, search, seizure, etc. -. . . . . . . . . . . . . . . . . . . . . . . . 25. Conditions to be observed by the agent.- The agent shall observe such conditions as the State Government or the Collector may by an order in writing direct from time to time, in respect of opening of shop maintenance of stocks, supply and distribution of Scheduled Commodities, maintenance of accounts, keeping of the registers filing returns and issue of receipt of Identity Card holder and other matters. . . . . . . . . . . . . . . . . . . . . . . . . 27. Penalty - Contravention of provisions of this order shall be liable to punishment in accordance with the orders issued by the State Government from time to time. 28. Appeal - (3) Any agent aggrieved by an order of the competent authority suspending or cancelling agreement of the fair price shop may appeal to the Appellate Authority within thirty days from the date of receipt of the order. . . . . . . . . . . . . . . . . . . . . . . . . 30. Savings.- Any act performed under the provisions of the Uttar Pradesh Scheduled Commodities Order, 1990, which is hereby repealed prior to commencement of this order shall be deemed to have been validly performed under the provisions of this order. ";