# Dinesh Kumar v. State of U.P. and others

- **Citation:** (2005) 1 ILRA 349
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-02-07
- **Case number:** Civil Misc. Writ Petition No. 17493 of 2004
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-kumar-v-state-of-u-p-and-others-40450
- **Pages:** 5

## Headnote

Constitution of India, Article 226-G.O.
dated 3.7.90- clause-7-Fair Price shopcancellation and appointment of Agent-
District Magistrate/S.D.M.-passed order
of cancellation on the basis of Gaon
Sabha resolution- without affording any
opportunity of hearing held- illegalclause-7 does not exclude the principle
of natural justice.

Held- Para 16

Therefore in Clause 7, the provision of
opportunity of hearing being afforded to
a person concerned against whom an
order is proposed to be passed must
necessarily be read, so as to make the
same inconformity with the requirement
of principle of natural justice. Clause 7
does not exclude the applicability of
principle
of
natural
justice.
The
contention raised on behalf of the
petitioner that no notice/opportunity of
hearing is required to be afforded to a
person, whose appointment of Fair Price
Shop Agent is to be cancelled merely
because a resolution by the Gaon Sabha
has been passed on certain irregularities,
cannot be legally accepted.
Case law discussed:
1986(4) SCC-537
AIR 1988-SC-686
AIR 1996 SC-1669
AIR 1998 SC 2526

## Text

1 All] Dinesh Kumar V. State of U.P. and others
349
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 7.2.2005

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 17493 of 2004

Dinesh Kumar

...Petitioner
Versus
State of Uttar Pradesh and others

 ...Respondents

Counsel for the Petitioner:
Sri H.N. Shukla,
Sri R.R. Shukla

Counsel for the Respondents:
Sri K.N. Bind
S.C.

Constitution of India, Article 226-G.O.
dated 3.7.90- clause-7-Fair Price shopcancellation and appointment of Agent-
District Magistrate/S.D.M.-passed order
of cancellation on the basis of Gaon
Sabha resolution- without affording any
opportunity of hearing held- illegalclause-7 does not exclude the principle
of natural justice.

Held- Para 16

Therefore in Clause 7, the provision of
opportunity of hearing being afforded to
a person concerned against whom an
order is proposed to be passed must
necessarily be read, so as to make the
same inconformity with the requirement
of principle of natural justice. Clause 7
does not exclude the applicability of
principle
of
natural
justice.
The
contention raised on behalf of the
petitioner that no notice/opportunity of
hearing is required to be afforded to a
person, whose appointment of Fair Price
Shop Agent is to be cancelled merely
because a resolution by the Gaon Sabha
has been passed on certain irregularities,
cannot be legally accepted.
Case law discussed:
1986(4) SCC-537
AIR 1988-SC-686
AIR 1996 SC-1669
AIR 1998 SC 2526

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard Sri H.N. Shukla, learned
counsel for the petitioner, Sri Kalp Nath
Bind, learned counsel for the respondent
no. 4 and learned Standing Counsel for
the respondent nos. 1 to 3.

2. Respondent no. 4, Manik Chand
was appointed as Fair Price Shop Agent
in respect of Gaon Sabha Chheechhna,
Teshildar
Machhalishahar,
district
Jaunpur,
Certain
complaints
were
received with regard to the distribution of
essential commodities by the said Fair
Price Shop Agent. On the receipt of
complaints, an enquiry into the allegations
made against the respondent no. 4, as Fair
Price Shop Agent was conducted. On the
basis of the report of the Tehsildar as also
on the basis of certain other materials as
have been noticed by the Sub Divisional
Magistrate, Machhalishahr, he passed an
order
dated
8th
September,
1998
cancelling
the
appointment
of
the
respondent no. 4 as Fair Price Shop
Agent. In the order reference has also
been made to the resolution of the Gaon
Sabha dated 5th July, 1998.

3. A day prior to the cancellation of
appointment of petitioner, there is an
order of Sub Divisional Magistrate,
Machhalishahr dated 7th September, 1998
appointing the present petitioner as Fair
Price Shop Agent in pursuance of the
resolution of the Gaon Sabha on the same
day i.e. 5th July, 1998, a copy of the said
appointment order has been filed as
Annexure no. 3 to the writ petition.
350 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Feeling aggrieved by the aforesaid order
of
the
Sub
Divisional
Magistrate,
Machchlishahr dated 8th September, 1998
cancelling
the
appointment
of
the
respondent no. 4 as Fair Price Shop
Agent, the respondent no. 4 preferred an
appeal, which was numbered as Appeal
No. 114 of 1998. The Commissioner,
Varanasi Division, Varanasi by means of
the order dated 3rd March, 2004 has
allowed the appeal after recording a
categorical
finding
that
the
order
canceling
the
appointment
of
the
respondent no. 4 as Fair Price Shop Agent
has been passed without notice for
opportunity of hearing to the petitioner.
Accordingly the Commissioner set aside
the
order
of
the
Sub
Divisional
Magistratge dated 8th September, 1998
and remanded the matter to the Sub
Divisional Magistrate, Machchlishahr for
deciding the dispute with regard to the
continuance of the respondent no. 4 afresh
in the light of the observations made in
the said order.

4. The petitioner who had been
appointed as Fair Price Shop Agent under
order dated 7th September, 1998 has
approached this Court by means of the
present writ petition against the aforesaid
order of the Commissioner, Varanasi
Region, Varanasi dated 3rd March, 2004.

5. On behalf of the petitioner it is
contended that under Government order
dated 3rd July, 1990 there is no provision
of any appointee of the Fair Price Shop
Agent to be afforded opportunity, whose
appointment is cancelled under the
resolution of the Gaon Sabha. Learned
counsel for the petitioner contents that the
appointment of Fair Price Shop agent is
made under a resolution of the Gaon
Sabha, and it is the decision of the Gaon
Sabha, which becomes final with regard
to his removal also. On behalf of the
petitioner it is further contended that the
Tehsildar, who was appointed as the
Enquiry Officer afforded opportunity of
hearing to the respondent no. 4 but the
respondent did not avail the same and
therefore the Tehsildar submitted a report
after making a spot enquiry. The order of
cancellation on the basis of the report of
the Tehsildar as also on the basis of other
materials as were available before him on
the date cannot be questioned.

6. On behalf of the respondent no. 4
it is contended that the order passed by
the Sub Divisional Magistrate is a nonspeaking order it contains absolutely no
reasons. It is further contended that the
order canceling the appointment of the
respondent no. 4 as Fair Price Shop Agent
visits the said respondent with evil civil
consequences and as such could not have
been passed without affording opportunity
of hearing to the said respondent. It is
further contended that opportunity of
hearing is necessarily to be read in Clause
7 of the Government order dated 3rd July,
1990 read with Government order dated
3rd February, 2001. Therefore, the order of
Commissioner calls for no interference.

7. I have heard learned counsel for
the parties and have gone through the
records of the present writ petition.

8. From the record of the present
writ petition, the following facts emerge.
The Gaon Sabha passed a resolution for
cancellation of the Fair Price Shop licence
of the respondent no. 4 in its meeting
dated 5th July, 1998, in the same meeting
it is alleged that the petitioner was
selected for being appointed as a Fair
Price Shop Agent in place of respondent
1 All] Dinesh Kumar V. State of U.P. and others
351
no. 4. Under the Government order dated
3rd July, 1990 read with Government
order dated 3rd February , 2001 both the
resolutions are required to be transmitted
to the District Magistrate/Sub Divisional
Magistrate, for necessary orders. The Sub
Divisional Magistrate, Jaunpur proceeded
to pass an order appointing the petitioner
as Fair Price Shop Agent on 7th
September, 1998 i.e. even prior to date of
passing of the order of cancellation of
appointment of the respondent no. 4 as
Fair Price Shop Agent of the shop in
question. The date of cancellation of the
appointment of respondent no. 4 as Fair
Price Shop Agent is 8th September, 1998.

9. The order passed by the Sub
Divisional
Magistrate
dated
8th
September,
1998
does
not disclose
sufficient reasons, further no opportunity
of hearing was afforded to the respondent
no. 4 before passing the cancellation
order. It is further apparent that the Sub
Divisional Magistrate has not even cared
to mention irregularities or the illegalities,
which have been found proved against
the respondent no. 4 in respect of
distribution of essential commodities in
the said order. He has not recorded a
satisfaction that the allegations stood
proved and they are so serious so as to
warrant cancellation of the appointment
of the respondent no. 4 as Fair Price Shop
Agent.

10. In the opinion of the Court such
an order passed by the Sub Divisional
Magistrate is wholly unjustified and does
not satisfy the requirement.

11. So far as the contention raised
by the petitioner to the effect that no
opportunity of hearing is contemplated
under the Government order dated 3rd
July, 1990 read with Government order
dated 3rd February, 2001 before passing
the
order
of
cancellation
of
the
appointment of the respondent no. 4 as
Fair Price Shop Agent is concerned,
suffice it to point out that clause 4.4 to
clause 4.12 of the said Government order
relied upon by the learned counsel for the
petitioner, relate to the appointment of
Fair Price Shop Agent and therefore, the
discretion vested in the Gaon Sabha for
passing the resolution in that regard
cannot be relevant for cancellation of
appointment of the Fair Price Shop Agent.
The provisions contained in clause 4.1. to
clause 4.12 of the said Government order
have no application , so far as the
cancellation of the appointment of Fair
Price Shop Agent is concerned.
12. The
main
clause
dealing
with
cancellation is the clause 7 of the said
Government
order,
which
reads
as
follows:-
"7- ;fn fdlh nqdkunkj }kjk vuqlwfpr oLrqvksa ds
mBku ;k forj.k esa xMcMh dh tkrh gS rks Loizsj.kk]
f'kdk;r ;k xkao lHkk ds izLrko ij ftykf/kdkjh
mudh nqdku fuyfEcr@fujLr dj ldrs gSaA

7-2 nqdku ds fuyEcu@fujLrhdj.k ds vkns'k dh
izfr xzke iz/kku ,oa mi iz/kku dks vfuok;Z :i ls nh
tk;sxh rFkk xzke lHkk dh vksj ls lkexzh mBkus dh
rkRdkfyd oSdfYid O;oLFkk djus dks dgk tk;sxk
rFkk ,d ekg ds vUnj izLrko ikfjr dj nwljs
nqdkunkj dh fu;qfDr dj nh tk;sA"

13. A bare reading of the aforesaid
clause 7 would establish that if the power
of cancellation of Fair Price Shop Agent
has been conferred upon the District
Magistrate/Sub
Divisional
Magistrate,
such an order can be passed sue motto on
complaints or with reference to a
resolution being made by the Gaon
Sabhas. The aforesaid clause 7 makes it
352 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
clear that the discretion of the District
Magistrate/Sub Divisional Magistrate to
pass the order is not certified in any
manner merely because a resolution has
been passed by the Gaon Sabha. The
resolution of the Gaon Sabha is only one
of the facts which may result in
cancellation of the appointment of an
agent after the allegations made are found
to
be
corrected
by
the
District
Magistrate/Sub
Divisional
Magistrate
while passing an order under clause 7.

14. It cannot be disputed that an
order of cancellation of the appointment
of the Fair Price Shop Agent visits the
person
concerned
with
evil
civil
consequences and such an order has
necessary to be passed in accordance with
the principle of natural of justice, failing
which the provision for cancellation of
appointment of the Fair Price Shop Agent
would at self be liable to be struck down
itself being violative of Article 14 of the
Constitution of India.

15. Administrative bodies while
passing orders affecting civil rights of a
person are also bound to act justly and
fairly,
which
may
bringing
the
requirement of natural justice. When a
power is conferred upon a public official
to destroy, defeat or prejudice a person's
right, interests or legitimate expectations,
the rules of natural justice regulate the
exercise of that power unless they are
excluded by plain words or necessary
intendment. Further, in India the State and
every public authority or instrumentality
of the State must act reasonably in public
interest and fairly for these requirements
have also been spelled out of Article 14
and the concept of rule of law. Article 14
is said to be the constitutional guardian of
principles of natural justice. Unless the
statute provides otherwise, the implication
of natural justice will require absence of
bias in and predecisional hearing by the
adjudicating authority, and any omission
by the adjudicating authority to hear the
person concerned is not cured by a prior
hearing given to him by the investigating
authority or by a post decisional hearing
given in appeal. The principles of natural
justice must be read into the unoccupied
interstices of the statute unless there is a
clear mandate to the contrary. (Reference;
(1986) 4 SCC 537 (Para 16) (Institute of
chartered Accountants of India Vs. L.K.
Ratna); AIR 1988 SC 686 (Paras
12,13,15 and 16) (K.L. Shephard Vs.
Union of India). The Hon'ble Supreme
Court has held, "Briefly stated' 'natural
justice'
'fairplay
in
action'
and
requirements of natural justice depend
upon the facts of each case. Therefore, in
judging the validity of an order when the
complaint is about non-compliance with
the principles of natural justice, in cases
where the attack is not on ground of bias,
a distinction has to be drawn between
cases of 'no notice' or 'no hearing' and
cases of 'no fair hearing' or 'no adequate
hearing'. If the defect is of the former
category, it may automatically make the
order invalid but if the defect is of the
latter category, it will have to be further
examined whether the defect has resulted
in prejudice and failure of justice and it is
only when such a conclusion is reached
that the order may be declared invalid.
(Reference, AIR 1996 SC 1669 (State
Bank of Patiala vs. S.K. Sharma, AIR
1998 SC 2526 (union of India vs.
Mustafa & Najibai Trading Co.).

16. Therefore in Clause 7, the
provision of opportunity of hearing being
afforded to a person concerned against
1 All] Dinesh Kumar V. State of U.P. and others
353
whom an order is proposed to be passed
must necessarily be read, so as to make
the
same
inconformity
with
the
requirement of principle of natural justice.
Clause
7
does
not
exclude
the
applicability of principle of natural
justice. The contention raised on behalf of
the petitioner that no notice/opportunity
of hearing is required to be afforded to a
person, whose appointment of Fair Price
Shop Agent is to be cancelled merely
because a resolution by the Gaon Sabha
has been passed on certain irregularities,
cannot be legally accepted.

17. In view of the aforesaid the
order passed by the Commissioner dated
3rd March, 2004 calls for no interference
under Article 226 of the Constitution of
India. The writ petition is devoid of merits
and is accordingly dismissed with no
order as to cost. Interim order, if any,
stands discharged.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.3.2005

BEFORE
THE HON'BLE S.K. SINGH, J.

Civil Misc. Review Petition No. 30419 of 2005
In
Civil Misc. Writ Petition No. 4450 of 1986

Mohan Lal Bagla

...Petitioner
Versus
Board of Revenue, U.P., Lucknow and
others

 ...Respondents

Counsel for the Petitioner:
Sri S.C. Tandon
Sri P.K. Jain
Sri R.V. Jain
Sri R.V. Gupta
Sri R.K. Jain
Sri B.D. Mandhyan

Counsel for the Respondents:
Sri V.B. Singh
Sri T.P. Singh
Sri A.P. Tiwari
Sri V.B. Upadhyay
Sri R.P. Gupta
Sri Vivek Saran
S.C.

Code of Civil Procedure- 0.47 r. Review
Petition-Petition decided on merit after
hearing the senior counsel-S.L.P. also
dismissed-Review
before
High
Court
through
another
counsel-without
no
objection
certificate
from
earlier
counsel-held-not maintainable-effort by
placing same new averments, evidence
to change the earlier view amounts to re
hearing- can not be scope of review.

Held- Para 14

Effort by placing same evidence, same
document
and
same
averments
for
taking different view than taken at
earlier stage, can never be the scope of
review petition otherwise, there may not
be any end of the matter as the loosing
party will always try to get review
petition filed and that too, may be some
more eminent advocate according to his
expectations
for
the
purpose
of
vehement re arguments in the matter in
the hope of getting some changed
opinion favouring him. This cannot be
the spirit of the provision as contained
under Order 47 Rule 1 C.P.C.
Case law discussed:
JT 1997(i) SC 486
JT 1997 (i) SC 486
2000 (6) SCC-360
1995 (1) SCC-170
AIR 1960 -SC-137

(Delivered by Hon'ble S.K. Singh, J.)