- (1.) THE petitioner is a fair price shop licencee. His licence has been suspended by order dated 28. 5. 2005 passed by Sub Divisional Magistrate, Faridpur, District-Bareilly. THE petitioner has challenged the suspension order on the ground that the suspension order does not disclose any material which is to be relied upon by the respondents during the enquiry. It has not been mentioned as to when and who had inspected the shop of the petitioner, when he found that the notice was not displayed on the shop. THE allegation that the petitioner had not distributed sugar etc. to persons who were below poverty line is vague as no details of persons had been mentioned to whom sugar etc. were not distributed. It has also not been mentioned as to whom the kerosene oil was sold at the rate of Rs. 127- per litre, in excess of the scheduled price, and in violation of the agreement. THE petitioner has challenged the suspension order dated 28. 5. 2005 by means of this writ petition.
(2.) WE have heard Sri S. D. Dubey, learned Counsel for the petitioner and Sri O. S. Tripathi, Additional Chief Standing Counsel appearing for the respondents. The learned Counsel for the petitioner has urged that the impugned suspension order has been passed in violation of G. O. dated 29. 7. 2004 and GO. dated 20. 12. 2004. He has further urged that Government order dated 20. 12. 2004 is ultra vires. The learned Counsel further urged that the impugned suspension order has been passed in violation of principles of natural justice. He has lastly urged that the petitioner has been deprived of his right to livelihood due to illegal and arbitrary action of the respondents. He placed reliance on a Division Bench decision of this Court in Civil Misc. Writ Petition No. 60978 of 2005, Smt. Alka Rani v. State of UP. and others, decided on 14. 9. 2005. On the other hand, the learned Additional Chief Standing Counsel has urged that there were complaints against the peti tioner of irregularities and the complaints have been filed along with the counter affidavit. He has placed reliance on a Division Bench decision of this Court in Gopi v. State of U. P. and others, 2007 (6) ADJ 231. The first question that arises for consideration is whether the impugned suspension order has been passed in violation of G. O. dated 29. 7. 2004 and 20. 12. 2004? The State Government with an objective to ensure fair distribution of essential commodities, to the residents of the State including persons living be low the poverty line, had been issuing various Government orders from time to time for equitable distribution of sugar, kerosene oil etc. , by appointing agents/ licencees in each district for running fair price shops under licences/agreements. It came to the notice of the State Government that large number of its officers were suspending/cancelling the licences/agreements arbitrarily and whimsically without giving any opportunity of hearing to the licencees. It is well known that fair price shops licences/agreements are sometimes suspended/cancelled rightly as the licencees are found indulging in mat-practices and the officers are justified in suspending/cancelling the licence/agreement. But it is equally well known that, largely, fair price shops licences/agreements are suspended/cancelled arbitrarily by the officers for political reasons or under political pressure, licences/agree ments are sometimes suspended/cancelled due to rivalry with the Pradhan of the Gaon Sabha because he is unhappy with the licencee, and sometimes licences/ agreements are suspended/cancelled due to "partibandi" in the village. The State Government took serious note of the fact that the authorised officers of the State as well as District Supply Officers were suspending and cancelling fair price shop licences of the fair price shop licencees and attaching their shops to another fair price shop licencees without any preliminary enquiry in an exparte manner and prior to suspending the fair price shop licence no preliminary enquiry was being got conducted and before cancellation of fair price shop licence no opportunity of hearing was being provided which resulted in passing illegal orders, contrary to the principles of natural justice, by the concerned authorities and sometimes even innocent fair price shop licencees were subjected to arbitrary action of the authorities. Therefore, for the first time, the State Government granted a fair deal to fair price shops licencees/agents and tried save them from arbitrary action of the officers and issued G. O. dated 29. 7. 2004 laying down the procedure for sus pending/cancelling the fair price shop licence/agreement so that its officers may act in a legal manner and by following correct procedure take action against fair price shops licencees so that unnecessary litigation may be avoided. In paragraph 2 the State Government laid down the procedure to be followed by the concerned authorities which is extracted below: From the aforesaid Government order it is apparent that if a complaint is received against a fair price shop licencee, a preliminary enquiry has to be con ducted and the concerned officer has to be satisfied that on the basis of the enquiry report the licencee was prima facie guilty of serious irregularities which may warrant cancellation of his fair price shop licence/agreement, only then the licence could be suspended and along with the suspension order, show cause notice was required to be issued to the licencee to show cause as to why his licence may not be cancelled. It was further provided that if in the preliminary enquiry report it is found that the irregularities are not serious enough on the basis of which the licence of the licencee could be cancelled then only a show cause notice be issued, but in either case a speaking order was required to be passed in which all the irregularities found in the enquiry on which a reply was expected from the licencee must be mentioned. In view of clause 2 (i) of the GO. dated 29. 7. 2004 the concerned authority is required to arrive at a decision on objective consideration as to whether the irregularities found against licencee in the enquiry are serious or not, and only then he can proceed either to suspend the fair price shop licence and issue show cause notice for cancellation or he may merely issue a show cause notice only to the licencee. The decision cannot be taken by the officer on subjective satisfaction. We are of the considered opin ion that in view of the provisions of GO. dated 20. 7. 2004 the concerned authority or officer should take a decision on the enquiry report on objective consideration by recording his reasons by a speaking order which should exist on the record. In absence of any order on objective consideration on the record would render the order of suspension/cancellation arbitrary and in violation of the mandatory provi sions of GO. dated 29. 7. 2004.
(3.) PARAGRAPH 2 (ii) of the GO. dated 29. 7. 2004 empowers the authorities to make surprise inspection and if he finds any serious irregularity then in his dis cretion the officer may suspend the licence. Even if the authority finds any irregu lar work or irregularity in distribution or black marketing by the licencee even then he is empowered to suspend the licence, but in the suspension order it is mandatory for him to mention every irregularity found by him and he is also required to issue a show cause notice to the licences to show cause as to why the licence may not be cancelled. It is also relevant to extract paragraphs 4 and 5 of the Government Order dated 29. 7. 2004:;