K. P. Singh, J. - (1.) BY means of this writ petition the petitioner has prayed for quashing the order dated 25-7-1989, contained in Annexure III attached with the writ petition, whereby the licence of the petitioner has been suspended.
(2.) THE petitioner had been granted a licence under the provisions of U. P. Kerosene Control Order, 1962 (hereinafter referred to as the Control Order). On 20-7-1989 the shop of the petitioner was inspected and it was found by the Senior Marketing Inspector that 14 litres of kerosene oil fell short of the requisite stock, therefore, the impugned order against the petitioner has been passed. The learned counsel for the petitioner has contended before us that in view of para 11 of the Control Order the petitioner's licence could not be suspended by way of punishment without affording opportunity to the petitioner. Para 11 reads as below : "The Licencing Authority may, for reasons to be recorded in writing, forfeit the security either in whole or in part, suspend or cancel any licence or refuse to renew a licence if it is satisfied that the licensee has contravened any provisions of this order or the conditions of the licence or any direction issued therender : Provided that the licensee shall be given a reasonable opportunity of submitting his explanation before forfeiture of security either in whole or in part, before a licence is cancelled or its renewal refused or it is suspended otherwise than by way of suspension pending inquiry ; Provided further that no order of suspension pending inquiry shall extend beyond a period of two weeks ; Provided also that it shall not be necessary to give an opportunity in respect of an alleged contravention which has led to the conviction of the Licensee. The learned counsel for the State has drawn our attention to paras 8 and 9 of the counter affidavit wherein it has been mentioned that a FIR has been lodged against the petitioner and it is not necessary to give an opportunity to the, petitioner in respect of the alleged contravention which may lead to the conviction of the petitioner.
(3.) AFTER weighing the contentions raised on behalf of the parties and purusing the relevant para 11 of the Control Order quoted above, we are of the opinion that the order contained in Annexure III attached with the writ petition is patently erroneous. It appears that the aforesaid order has been passed against the petitioner by way of punishment. The suspension of the petitioner's licence is not during the pendency of any enquiry and the suspension of the licence can take place only if he has been given an opportunity in view of submitting his explanation for the alleged contravention of the relevant para 11 of the Control Order. Since no opportunity has been given to the petitioner the order contained in Annexure III attached with the writ petition suffers from patent error of law. The next submission made on behalf of the State is that the FIR lodged against the petitioner would lead to his conviction, therefore, it was not necessary to give any opportunity to the petitioner to submit his explanation. Relevant allegations have been made in Paras 8 to 10 of the counter affidavit. We are not satisfied with the statement made on behalf of the State. The last proviso to Para 11 of the Control Order reads thus : Provided also that it shall not be necessary to give an opportunity in respect of an alleged contravention which has led to the conviction of the Licensee.;