DAUJI RAM Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and the learned Standing Counsel as well as the learned counsel for respondent no.4. The petitioner has approached this Court for issuing a writ of certiorari quashing the orders dated 20.1.2006 and 8.2.2006 passed by respondent no.3 and the order dated 24.8.2006 passed by respondent no 2, Annexures-1,2 and 8 respectively to the writ petition. The petitioner, who is a licensee of the fair price shop, was granted license in the year 2005. It appears that some persons in the village were having some grievance against the petitioner, therefore, behind the back of the petitioner, a complaint was made and a meeting under the supervision of Gram Pradhan was held on 17.12.2005 and it was decided that the licence granted to the petitioner for fair price shop be cancelled and on that basis a resolution was passed to cancel the licence of the fair price shop vide its order dated 20.1.2006. The petitioner aggrieved by the aforesaid order, filed an appeal. With the appeal an application for stay was filed and the cancellation was stayed by the appellate court but subsequently vide its order dated 24.8.2006 the appeal filed by the petitioner was dismissed. The petitioner aggrieved by the aforesaid order has filed the present writ petition. This Court considering the facts and circumstances and the order of the authority below and also taking into consideration the fact that an interim order was operating in favour of the petitioner during pendency of the appeal, granted an interim order, meaning thereby the petitioner was permitted to continue to operate the fair price shop. A counter affidavit has been filed on behalf of the Standing Counsel as well as on behalf of one of the private respondents alleging himself to be the subsequent allottee. It has been submitted by the learned counsel for the petitioner that no proceeding has been initiated against the petitioner before passing the order impugned cancelling the licence of the petitioner. Only on the basis of some complaint to the relevant authority, on the basis of resolution passed by the Gaon Sabha, the licence of the petitioner has been cancelled. The appellate authority has also not considered the said aspect of the matter. Learned Standing Counsel who has filed a counter affidavit, is also not in a position to justify the order impugned by the authorities below to this effect that whether under such circumstances, such type of order impugned cancelling the licence of the petitioner can be passed. After hearing the learned counsel for the parties and after perusal of record, in my opinion, the order impugned passed by respondent is not sustainable in law because such type of resolution on the basis of complaint by the Gaon Sabha cannot be passed cancelling the licence of a person without issuance of a show cause notice and without affording an opportunity to the person concerned. Under the rules the "Licensing Authority" has been defined, therefore, if there is any complaint against a holder of the fair price shop a notice of show cause, has to be given and the charges levelled against him has to be proved on the basis of evidence on record after affording full opportunity to the person concerned. From the perusal of the record it is clear that no notice or show cause was however, given to the petitioner but only on the basis of some complaint, the resolution was passed by the Gaon Sabha and the licence of the petitioner for fair price shop has been cancelled. The appellate court has committed the same mistake and has not taken into consideration the fact that the order passed by the Gaon Sabha or Land Management Committee passing a resolution is not permissible under the rules. In view of the aforesaid fact the orders dated 20.1.2006 and 8.2.2006 passed by respondent no.3 and the order dated 24.8.2006 passed by respondent no 2, Annexures-1,2 and 8 respectively to the writ petition are hereby quashed. The writ petition is allowed. The respondents are directed to restore the licence of the fair price shop of the petitioner forthwith and to allocate the food grains and other articles for distribution to the card holders. No order is passed as to costs.