Dismissed

Aijajuddin v. State of U.P. and 4 Others

Allahabad HC1 Nov 2021WRIC/13873/2021

Case brief

AI extract

What is this about?

The petitioner challenged the cancellation of his fair price shop license by the licensing authority. The court, relying on the U.P. Control Order, 2016, held that the authorities had followed the mandated procedure including a response opportunity. Dismissing the appeal on merits, the court found no basis for writ intervention.

What did the court decide?

Writ petition failed and is hereby dismissed. No interference is required.

Aijajuddin Vs State of U.P. and 4 Others — Service and Employment | Allahabad HC (2021)

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[1]

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Reserved on 27.08.2021 Delivered on 01.11.2021

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Court No. - 32

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Case :- WRIT - C No. - 13873 of 2021 Petitioner :- Aijajuddin Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Kamla Singh,Vijay Shanker Singh Counsel for Respondent :- C.S.C.,Sudhir Bharti

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Hon'ble Rohit Ranjan Agarwal,J.

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Heard Ms. Kamla Singh, learned counsel for petitioner, learned Standing Counsel for respondents State and Sri Sudhir Bharti, learned counsel appearing for respondent no. 5, Gaon Sabha.

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This writ petition assails the order dated 23.01.2021 passed by licensing authority cancelling the license of fair price shop of petitioner and appellate order dated 15.03.2021 whereby the appeal has been dismissed.

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According to petitioner, after being granted license to run fair price shop, he was running the same without any complaint, but due to 11 card holders who were inimical to petitioner and had given false statement, on their statement which was recorded on 30.12.2020, proceedings were launched for cancellation of license.

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It is contended that there are total 334 cards holders attached to fair price shop of petitioner, out of which 267 are holding house hold cards and 67 are Antodya card holders. Upon the inquiry report submitted by Supply Officer, Sub Divisional Magistrate suspended the license. A reply was submitted on 22.12.2020 wherein it has been submitted that distribution had been made to card holders and affidavits of various card holders were also filed, but the license was cancelled on 23.01.2021 exceeding the charges levelled in the charge-sheet. The appeal filed was also rejected without considering the grounds.

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It is further submitted that suspension and cancellation orders were solely on the basis of recommendation of Supply Officer and no

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[2]

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satisfaction was recorded by licensing authority, nor documents submitted were considered nor controverted. Further, neither any opportunity was given to petitioner to cross-examine the complainants nor stock register, distribution register submitted were considered before the license was cancelled.

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Reliance has been placed upon decisions of this Court in case of Ram Ujagir vs. State of U.P. and others, 2016 (11) ADJ NOC 42, Hublal Shah vs. State of U.P. and others, 2018 (4) ADJ 789, Mahendra Singh vs. State of U.P. and others, 2016 (8) 732, Santara Devi vs. State of U.P. and others, 2016 (2) ADJ 70 and Ajad Kumar vs. State of U.P. and others, Writ-C No. No. 46648 of 2017 , decided on 23.10.2017.

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Opposing the writ petition, learned Standing Counsel submitted that pursuant to enforcement of National Food Security Act, 2013, Section 3 recognises the right to food of an individual as well as card holders. Pursuant to which, U.P. Control Order, 2016 was promulgated on 10.08.2016 in the State of U.P. It provides for a complete mechanism in regard to complaint, inquiry and procedure to be followed in the case of suspension and cancellation of a license. The authorities after observing and following the due procedure had proceeded to cancel the license of petitioner after finding serious charges of irregularity committed by petitioner in distribution of food grains to card holders.

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I have heard learned counsel for the parties and perused the material on record.

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The thrust of argument of petitioner is that an opportunity of hearing, cross-examining the complainants and lapse in inquiry are the main cause for challenging the order in the present petition. It is well settled that right to food has become part of right to life as guaranteed under Article 21 of Constitution of India. Central Government recognised the said fact and enacted National Food Security Act, 2013 recognising the right of an individual to receive food.

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[3]

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This is a paradigm shift by the State recognising the right of an individual to receive food.

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The Apex Court while upholding the validity of The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 in case of K.S.Puttaswamy (Retired) and Another (AADHAAR) vs. Union of India and Another (2019) 1 SCC 1 has held that right to receive food has now become a fundamental right and not based on the directive principles as provided under Article 47 of Constitution of India.

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Petitioner who is a dealer of a fair price shop, his claim arises from the agreement which is executed by him with State Government, thus, he cannot claim fundamental right to carry on business under Article 19(1)(g) of Constitution of India.

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Any violation of terms and conditions of license has to be considered in terms of agreement executed by dealer with State and mechanism provided under Control Order, 2016. In the instant case, remedy having exhausted by petitioner by filing reply, and the authorities considering the same and reaching upon the conclusion cancelling his license and furthermore appeal also having been dismissed, no question arises for exercising of extraordinary jurisdiction under Article 226 of Constitution of India.

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Recently in case of Najakat Ali vs. State of U.P. and 4 others, Writ Petition No. 15420 of 2020 , decided on 22.10.2021, this Court held as under:-

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"145. When the Act of 2013 was enforced with certain objects followed by Act of 2016, the State Government, in order to ensure targeted delivery of essential commodities to the last person of the society, promulgated Control Order 2016 providing a complete procedure to cut short the dispute arising between the licensee and the licensor.

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146. Earlier no such provision existed under Order of 2004 which found place under sub-Clause (7) of Clause 8 of Control Order 2016. Mechanism provided for action against a licensee

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[4]

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only when, on an enquiry, any adverse material is on record, show cause notice is mandated and after consideration of reply, the license can be cancelled.

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147. Thus, requirement of hearing a licensee before his license is cancelled, is protected under the new regime. It is not a unilateral action which the authorities can take by cancelling the license at their whims. Further, safeguard has been provided under Clause 13 by providing a right to appeal against the action of the licensor. These actions were missing under the previous Control Orders and time to time external aid was taken when it was found that action of the State Authorities cannot be left at their mercy.

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148. It has to be kept in mind that proceedings before these administrative authorities are summary in nature and ground taken that full-fledged departmental inquiry should be held and the procedure, as provided under the departmental inquiry should be followed, cannot be accepted. In the case of Meena Devi vs. State of U.P. and others, (2018 ) 10 ADJ 385 , this Court had in clear terms relying upon the decision of Apex Court in case of A.S. Motors Pvt. Ltd. vs. Union of India, (2013)10 SCC 114 rightly held that Article 311 of the Constitution is not attracted and no such inquiry can be held.

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149. This Court finds that once earlier Government Orders were repealed and Control Order 2016, providing for procedure, the Government Order dated 29.07.2004 being inconsistent with the Control Order 2016 cannot be taken into account and is not saved under Section 24 of the General Clauses Act.

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150. Principle of audi alteram partem is fully adhered to once the opportunity is granted by the licensor for giving reply/explanation. The argument that no opportunity of hearing was provided cannot be accepted.

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151. It has already been discussed above that a dealer is bound by the license/agreement and violation of any of the conditions of the agreement leads to suspension/revocation of his license. His license is subservient to right of an individual card holder given under Section 3 of the Act of 2013, and thus no question arises to grant him leverage for benefit of procedure of a departmental inquiry.

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152. In view of the above, this Court finds that the ground raised in this bunch of petitions for non supply of complaint and affidavits of cardholders before enquiry officer; non supply of inquiry report; non affording of opportunity to examine the witnesses/card holders and cross examine the complainant/Inquiry Officer; non supply of documents and material relied upon by the enquiry officer/complainant mentioned in the show cause notice/suspension order; non providing of opportunity of hearing; and, non consideration of affidavits filed in favour of dealer/licensee post complaints, do not hold good in the light of Control Order, 2016, providing for complete mechanism under sub-clause (7) of Clause 8."

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Considering the facts and circumstances of the case and decision

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rendered in Najakat Ali (supra), this Court finds that no indulgence is required of this extraordinary jurisdiction under Article 226 of Constitution, once the reply/explanation of petitioner having been considered by licensing authority and appeal having been dismissed on merits.

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No interference is required. Writ petition fails and is hereby dismissed.

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Order Date :-01.11..2021 V.S.Singh

Aijajuddin v. State of U.P. and 4 Others

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Aijajuddin v. State of U.P. and 4 Others

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