GOPI Vs. STATE OF U P

JUDGEMENT

(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.

(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 THE Court was not informed, while deciding the said case, that the Government Order 1990 had been repealed by the U. P. Scheduled Commodities Distribution Order, 2004, and therefore, the Order 1990 was not in force.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)