# Ram Kripal Yadav v. State of U.P. and others

- **Citation:** (2011) 2 ILRA 538
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-05-05
- **Case number:** Writ Petition No. 4011 (M/S) of 2010
- **Bench:** Rajiv Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kripal-yadav-v-state-of-u-p-and-others-41918
- **Pages:** 11

## Text

538 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
allegation that the petitioner is using the
formula of the respondent company for
his benefit to cause loss to the respondent
company's business. The petitioner is
alleged to have conspired along with other
accused.

3. In reply, it is stated by the
petitioner that if the allegation leveled
against
the
petitioner
is
accepted
maximum, the case may be of the
violation of Patent Act or Copyright Act,
but not to steal any secret documents or
information. Therefore, the complaint as
well as the summoning order passed
therein deserves to be quashed. In support
of his submission, he also cited a decision
rendered in the case of Amarnath Bihari
v. Uma Shanker reported in A.I.R.
1955 Patna 288(Vol. 42, C.N.52), in
which it has been held that whether the
contract dealing with the assignment of
the copyrights has or has not been in fact
infringed will be the subject matter of
discussion in a civil suit properly
constituted for that and is not relevant to
the decision of criminal case on a charge
under Section 489 of the Indian Penal
Code.

4. Upon perusal of the record, I find
that there is allegation to disclose the
secrecy of the respondent company as
well as stealing of some secret formulas,
which are used by the respondent
company by the selected candidates, in
which the petitioner is alleged to be
conspired with them, whereas I am of the
view that such allegation is the subject
matter of civil suit. If there is a violation
of Patent Act or Copyright Act, it is open
for the respondent to take necessary
action therein, but once the respondentcompany's
employees
were
selected
through the open recruitment by the
petitioner, it cannot be said that he has
committed any fraud, as alleged.

5. Therefore, I hereby quash the
complaint case no. 4984 of 2006 as well
as the order passed therein on 25th of
January, 2007 pending before the Judicial
Magistrate 1st Lucknow.

The petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.05.2011

BEFORE
THE HON'BLE RAJIV SHARMA, J.

Writ Petition No. 4011 (M/S) of 2010

Ram Kripal Yadav

 ...Petitioner
Versus
State of U.P. and others ...Respondents

(A) Constitution of India, Article 226maintainability-cancellation
of
the
licence of Fair Price Shop-whether can
Writ
Court
empowered
to
judicial
review?-held-"yes"-Fair Price Shop being
a creation of statutory provision for
Public Distribution System-can not be
taken
lightly-without
following
Principles of Natural Justice without
supplying
the
copy
of
preliminary
enquiry report-being basis of impugned
cancellations.

Held: Para 8,10,11,13 and 16

From the legal proposition reproduced
herein above, it is evident that there is
no blanket ban in entertaining the writ
petitions. It is true that ordinarily the
remedy for breach of contract is a suit
for damages or for specific performance
and not a writ petition under Article 226
of the Constitution. However, where the
contractual dispute has a public law
element, the power of judicial review
under Article 226 may be invoked. In
2 All] Ram Kripal Yadav V. State of U.P. and others
539
civil suit, emphasis is on the contractual
right whereas the emphasis in writ
petition is only the validity of the
exercise of power by the authority.

Thus the consistent view of the court is
that actions and the orders of public
officers are amenable to judicial review
even if they may arise out of a contract
or any scheme of the Government, and
therefore, the writ petition cannot be
thrown out simply on the technical
ground that it is not maintainable.

In view of the above discussion, I am of
the considered opinion that the order
passed
by
the
Sub
Divisional
Magistrate/District Magistrate cancelling
the licence and the Commissioner, who
rejected the appeal preferred against the
order of cancellation are public servant
and decision taken by them in the garb
of a legislation cannot escape judicial
review
under
Article
226
of
the
Constitution
and,
therefore,
a
writ
against such an order would lie at the
behest
of
the
person
aggrieved,
irrespective of the nature of his service
rendered by him. Moreover, by entering
into an agreement, a civil right in favour
of the petitioners which cannot be taken
away on the whims of the authorities.

Here, it is not in dispute that in all the
aforesaid writ petitions, petitioners have
complained that the order of cancellation
has been passed in blatant disregard of
the principles of natural justice as the
copies of the documents utilized against
them were not furnished. Against the
order of cancellation, the petitioners
have approached the Commissioner by
filing appeals but the appellate authority
also dismissed their appeals. Petitioners,
after rejection of their appeals, have no
other statutory remedy except to invoke
the jurisdiction of this Court under
Article
226
of
the
Constitution
questioning the validity of the appellate
order including the order of cancellation.

In the backdrop of the aforesaid facts,
the order of cancellation of license to run
fair
price
shop
under
the
public
distribution system subject to appeal, is
ultimately amenable to writ jurisdiction
as statutory authority cannot claim
immunity from judicial review in respect
of
its
functions
vis-a-vis
public
distribution system. Thus the argument
advanced by the State Counsel regarding
maintainability of writ petition is wholly
misconceived and it is held that the writ
petitions are maintainable.

(B) Constitution of India ,Article 226-
"Natural Justice" and "Legal Justice"
distinction between the two-explained
wherever
legal
justice
fails-Natural
Justice called to aid the Legal JusticeRole of Natural Justice in contractual
obligation-explained.

Held: Para 20 and 31

The expressions "natural justice" and
"legal
justice"
do
not
present
a
watertight
classification.
It
is
the
substance of justice, which is to be
secured by both, and whenever legal
justice fails to achieve this solemn
purpose, natural justice is called in aid of
legal justice. Natural justice relieves
legal
justice
from
unnecessary
technicality, grammatical pedantry or
logical prevarication. It supplies the
omissions of a formulated law. As Lord
Buckmaster said, no form or procedure
should ever be permitted to exclude the
presentation of a litigant's defence.

After peeping into the contentions of
both the parties and the series of case
laws, referred to above, I am of the
considered opinion that the cancellation
of a agreement/licence of a party is a
serious business and cannot be taken
lightly. In order to justify the action
taken
to
cancel
such
an
agreement/licence,
the
authority
concerned has to act fairly and in
complete
adherence
to
the
rules/guidelines framed for the said
purposes including the principles of
natural justice. The non-supply of a
document utilized against the aggrieved
540 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
person before the cancellation of his
allotment
of
fair
price
shop
licence/agreement
offends
the
wellestablished principle that no person
should be condemned unheard.
Case law discussed:
1991 All.L.J.498; [2008 (6) ADJ 443 (DB)];
[2000 (18) LCD 321]; 1993 (1) ALR 121;
2008(3) ADJ 36; AIR 1964 SC 72; (1999) 1
SCC 741; 2009 (1) ADJ 379 (DB); (1863) 143
ER 414; (1993) 3 SCC 259; (1998) 7 SCC 66;
JT 1996 (3) SC 722; 2001(19) LCD 513; 2006
(24) LCD 1521; 2008 (16) LCD 891; [2011
(29) LCD 626]

(Delivered by Hon'ble Rajiv Sharma, J. )

1. In all the afore-captioned writ
petitions, the petitioners are Fair Price
Shop licencees and the question involved
is as to whether non-furnishing the copy
of the complaint or preliminary enquiry
report or the inspection report or any
other document, which has been utilized
against the Fair Price Shop licencee while
cancelling
the
licence,
amounts
to
violation of principle of natural justice or
not. The assertion of the petitioners is that
the plea of opportunity of hearing and
non-supply of relevant documents, which
were taken into consideration by the
Licensing Authority, was raised before
the appellate authority but the same has
not been dealt with in its correct
perspective.

Heard learned Counsel for the
parties.

2. According to State Counsel, to
ensure proper distribution of essential
commodities, which are bare need of the
public they are to be distributed through
the public distribution system for which
Essential Commodities Act, 1955 was
enacted by the Central Government.
Pursuant to the powers conferred by the
Public Distribution System (Control)
Order,
the
State
Government
for
maintaining the supplies of the food
grains and other essential commodities
and to secure equitable distribution and
availability at fair price vide notification
dated 20.12.2004, notified U.P. Schedule
Commodities Distribution Order, 2004.
This Distribution Order was notified by
the State Government in exercise of the
powers conferred under Section 3 of the
Act of 1955 read with provisions
contained in Public Distribution System
(Control) Order, 2001. Apart from the
U.P. Schedule Commodities Distribution
Order, 2004 (in short referred to as the
Distribution Order of 2004) which is
w.e.f. 30.12.2004, the State Government
issued
a
Government
Order
dated
29.7.2004
on
the
subject
of
monitoring/regulating various kind of
procedures.

3. Elaborating his arguments, State
Counsel submitted that Clause-4 of the
Distribution Order provides that a person
granted fair price shop is to sign an
agreement
under
sub-clause(3)
for
running the fair price shop before the
competent authority prior to the coming
into effect of the said appointment. Clause
25 provides observance of the conditions
as the State Government stipulates
whereas Clause 28(3) of the Order
provides filing of appeal against the order
of suspension or cancellation of the
agreement. Thus a person appointed to
run a fair price shop acts as an agent of
the State Government, who is under an
obligation to sign an agreement. The
agent so appointed is under an obligation
to maintain record of supply and
distribution of scheduled commodities,
maintenance of accounts, keeping of the
registers filing returns and issue of receipt
2 All] Ram Kripal Yadav V. State of U.P. and others
541
to Identity Card holder and other matters.
In some of the writ petitions, it has been
indicated in the counter affidavit that the
cancellation of agreement relating to fair
price shop is a non-statutory agreement
and the orders regarding cancellation of
non-statutory agreement are not amenable
to writ jurisdiction before this Court. In
this regard reliance has been placed on
Gopal Das Sahu and another vs. State
of U.P. and others; 1991 All.L.J.498 and
Kallu Khan vs. State of U.P. and
another [2008(6) ADJ 443 (DB)] and
other cases.

4. Sri Rakesh Srivastava, Standing
Counsel also contended that when a fair
price shop licence holder committs
irregularities or is found to have indulged
in the activities in contravention to the
licence of Fair Price shop dealer, his
agreement/licence is suspended. Before
passing order of suspension of the licence,
there is no contemplation of any notice
and opportunity.

5. Adverting to the present cases, he
submitted that the order of cancellation
was passed after providing the licence
holder an opportunity of hearing which
would tantamounts to passing the order
after observing the principles of natural
justice and as such it cannot be said that
there was any infirmity. He further
submitted that the appeal has also been
dealt with by the Appellate Authority in a
proper manner and after recording cogent
and plausible findings and only then, it
was
dismissed.
Therefore,
the
writ
petitions are liable to be dismissed on the
aforesaid grounds.

6. In Sri Pappu vs. State of U.P.
and others [2000(18) LCD 321] the
question for consideration before the
Division Bench was as to whether the writ
petition is maintainable against the order
of cancellation of fair price shop in view
of the Full Bench decision of the Court in
the U.P. Sasta Galla Vikreta Parishad
vs. State of U.P. and others 1993(1)
ALR 121. The Division Bench presided
over by Hon'ble N.K.Mitra, Chief Justice
(as he then was) while examining the
amended provisions of U.P. Panchayat
Raj Act in view of the Article 243-G of
the Constitution under which Gram
Panchayat has been entrusted with the
function of performing public distribution
system, the Court while holding that writ
petition is maintainable and observed in
paragraph 9 of the report as under:-

"...Allotment of fair price shop or its
cancellation is now a statutory function of
the Gram Panchayat Exercise of statutory
power by Gram Panchayat for collateral
purposes is interdicted by Article 14 of
the Constitution. Arbitrary grant or
cancellation of fair price shop is open to
judicial review under Article 226. The
Full Bench decision, reliance on which
has been placed by the learned Single
Judge in dismissing the writ petition as
not maintainable, in our opinion, has been
rendered
obsolete
in
view
of
the
constitutional and statutory amendments
referred to above."

7. After issuance of various other
Government Orders, the matter again
gaized attention of this Court inre:Kallu
Khan vs. State of U.P. and another
[supra] before the Division Bench of this
Court an objection was raised by the
Standing Counsel placing reliance on the
Full Bench judgement in U.P. Sasta Galla
Vikreta parishad (supra) that the right of
petitioner being contractual in nature and
not statutory, the remedy, if any lies,
542 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
either by filing appeal before the
appropriate authority as provided under
the relevant Government Orders and for
alleged breach of contract, the writ
petition
under
Article
226
of
the
Constitution is not maintainable. The
Division Bench after considering the Full
Bench decision in U.P. Sasta Galla
Vikreta Parishad, Sri Pappu vs. State
of U.P. [supra], Harpal vs. State of U.P.
and others 2008(3) ADJ 36 and various
other cases, which has been relied by the
State Counsel, observed in para 59 of the
report as under:-

" In view of the above discussion
even if we come to the conclusion that as
such the petitioner may not be non-suited
on the ground that the writ petition is not
maintainable yet it cannot be said that the
Writ Court must entertain the writ petition
whenever there is any complaint of breach
of certain contractual rights. The legal
position is otherwise. As observed by the
Apex Court in Swapan Kumar Pal (supra)
the scope of judicial review is only
limited to interfere when there is any error
in decision-making process and not
otherwise. Even if the writ petition, as
such , may not be dismissed on the
ground that it is not maintainable yet we
are of the view that in such matters
exercise of discretion under Article 226 of
the Constitution by entertaining writ
petition would not be prudent unless it is
shown that there is any violation of
statutory provisions particularly when
alternative remedy is available to the
petitioner."

8. From the legal proposition
reproduced herein above, it is evident that
there is no blanket ban in entertaining the
writ petitions. It is true that ordinarily the
remedy for breach of contract is a suit for
damages or for specific performance and
not a writ petition under Article 226 of the
Constitution.
However,
where
the
contractual dispute has a public law
element, the power of judicial review
under Article 226 may be invoked. In
civil suit, emphasis is on the contractual
right whereas the emphasis in writ
petition is only the validity of the exercise
of power by the authority.

9. It is pertinent to add that issue
whether the writ petition is maintainable
or the person aggrieved is entitled to
invoke
the
writ
jurisdiction
was
considered by the Apex Court in
following cases:-

In Pratap Singh Keron v. State of
Punjab AIR 1964 SC 72, the Supreme
Court observed as under:-

" The Rule of law and Article 226 is
designed to ensure that each and every
authority
in
the
State
including
Government of India acts bonafide and
within the limits of its power and we
consider that when the Court is satisfied
that there is an abuse and misuse of power
and its jurisdiction is invoked, it is
incumbent on the Court to afford justice
to the individual."

In the case of U.P.State Cooperative Bank Limited v. Chandra
Bhan Dubey (1999) 1 SCC 741, the
Supreme Court has laid down the
following proposition:-

"... The Constitution is not a statute.
It is a fountainhead of all statutes. When
the language of Article 226 is clear, we
cannot put shackles on the High Courts to
limit their jurisdiction by putting an
interpretation on the words which would
2 All] Ram Kripal Yadav V. State of U.P. and others
543
limit their jurisdiction. When any citizen
or person is wronged, the High Court will
step into to protect him, be that wrong be
done by the State, an instrumentality of
the State, a company or a co-operative
society or association or body of
individuals, whether incorporated or not,
or even an individual. Right that is
infringed may be under part Part III of the
Constitution or any other right which the
law validly made might confer upon him."

A Division Bench of this Court in the
case of Meena Srivastava v. State of
U.P. 2009(1)ADJ 379(DB) held as
under:-

" In the facts of the present case writ
petition has been filed against an action of
a Government Officer, who is public
authority. The writ petition under Article
226 of the Constitution of India is
maintainable against a public authority.
The public authorities, who are State
authorities and instrumentalities are not to
act
arbitrarily,
irrationally
or
unreasonably. Any action of public
authority can always be impugned in the
writ petition and it cannot be said that the
writ petition is not maintainable in such
case."

10. Thus the consistent view of the
court is that actions and the orders of
public officers are amenable to judicial
review even if they may arise out of a
contract
or
any
scheme
of
the
Government, and therefore, the writ
petition cannot be thrown out simply on
the technical ground that it is not
maintainable.

11. In view of the above discussion,
I am of the considered opinion that the
order passed by the Sub Divisional
Magistrate/District Magistrate cancelling
the licence and the Commissioner, who
rejected the appeal preferred against the
order of cancellation are public servant
and decision taken by them in the garb of
a legislation cannot escape judicial review
under Article 226 of the Constitution and,
therefore, a writ against such an order
would lie at the behest of the person
aggrieved, irrespective of the nature of his
service rendered by him. Moreover, by
entering into an agreement, a civil right in
favour of the petitioners which cannot be
taken away on the whims of the
authorities.

12. At this juncture, it would be
relevant to point out that in Rajendra
Prasad vs. State of U.P. and others
[decided on 9th February, 2009 by the
Apex Court] the grievance of the
appellant before the High Court was that
allotment of Fair Price shop at village
Kanakpur, district Bhadohi was cancelled
by the authority without giving him
opportunity of hearing. The High Court
summarily dismissed the writ petition.
Hence, the appeal by Special leave was
preferred by the appellant. The Apex
Court after examining the matter and
finding that the opportunity of hearing
was not afforded, allowed the appeal and
quashed the order cancelling the allotment
of Fair Price Shop of the appellant and the
order passed by the High Court in the writ
petition. This case has been referred to
show that the Apex Court did not decline
to interfere in the matter on the ground
that allotment of fair price shop is a
contractual agreement or said that it is not
amenable to writ jurisdiction. On the
other hand, from this judgement of the
Apex Court, it clearly emanates that when
there is violation of principles of natural
justice, the court can very well interfere in
544 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
exercise of its discretionary power under
Article 226 of the Constitution.

13. Here, it is not in dispute that in
all the aforesaid writ petitions, petitioners
have complained that the order of
cancellation has been passed in blatant
disregard of the principles of natural
justice as the copies of the documents
utilized against them were not furnished.
Against the order of cancellation, the
petitioners
have
approached
the
Commissioner by filing appeals but the
appellate authority also dismissed their
appeals. Petitioners, after rejection of
their appeals, have no other statutory
remedy except to invoke the jurisdiction
of this Court under Article 226 of the
Constitution questioning the validity of
the appellate order including the order of
cancellation.

14. It may be clarified that the
appeal
against
the
cancellation
of
allotment of fair price shop is creation of
the statute. The order of Appellate
Authority has also been assailed on
various
grounds.
Therefore,
the
proceedings of an authority adjudicating
upon question affecting the rights are
amenable to writ jurisdiction of the High
Court
under
Article
226
of
the
Constitution.

15. To clarify further, it may be
mentioned that it is well recognised law
that any authority or body of persons
constituted by law or having legal
authority to adjudicate upon question
affecting the rights of a subject and
enjoined with a duty to act judicially or
quasi-judicially
is
amenable
to
the
certiorari jurisdiction of the High Court.

16. In the backdrop of the aforesaid
facts, the order of cancellation of license
to run fair price shop under the public
distribution system subject to appeal, is
ultimately amenable to writ jurisdiction as
statutory authority cannot claim immunity
from judicial review in respect of its
functions vis-a-vis public distribution
system. Thus the argument advanced by
the
State
Counsel
regarding
maintainability of writ petition is wholly
misconceived and it is held that the writ
petitions are maintainable.

17. Next, the precise ground though
not taken in the counter affidavit but
argued by Sri Rakesh Srivastava, State
Counsel is that it is not mandatory to
furnish copy of the preliminary inquiry
report or other material relied upon by the
licensing authority for cancelling the
licence
of
the
fair
price
shop
agreement/licence of the petitioner. Rules
of natural justice are not applicable in the
matter of cancellation of fair price shop
agreement/licence as is required under the
service jurisprudence and other matters.
The authority concerned under law is not
required
to
furnish
copy
of
the
preliminary enquiry report or other
documents, therefore, as asserted by the
petitioners, there is no violation of
principles of natural justice. He clarified
that the proceedings in question regarding
inquiry, suspension and cancellation of
fair price shop allotment of the petitioner
have been conducted in consonance with
the provisions contained in G.O. dated
29.7.2004, which is self contained and as
such there was no question of providing
copy of enquiry report to the petitioner.

18. Natural justice has a prime role
to play in the matter where the justice has
2 All] Ram Kripal Yadav V. State of U.P. and others
545
to be secured. Natural justice is another
name for common-sense justice.

19. Rules of natural justice are not
codified canons. But they are principles
ingrained into the conscience of man.
Natural justice is the administration of
justice in a common sense/ liberal way.
Justice is based substantially on natural
ideals
and
human
values.
The
administration of justice is to be freed
from
the
narrow
and
restricted
considerations
which
are
usually
associated
with
a
formulated
law
involving linguistic technicalities and
grammatical niceties. It is the substance
of justice which has to determine its form.

20. The expressions "natural justice"
and "legal justice" do not present a
watertight
classification.
It
is
the
substance of justice, which is to be
secured by both, and whenever legal
justice fails to achieve this solemn
purpose, natural justice is called in aid of
legal justice. Natural justice relieves legal
justice from unnecessary technicality,
grammatical
pedantry
or
logical
prevarication. It supplies the omissions of
a formulated law. As Lord Buckmaster
said, no form or procedure should ever be
permitted to exclude the presentation of a
litigant's defence.

21. The adherence to principles of
natural justice as recognized by all
civilized States is of supreme importance
when a quasi-judicial body embarks on
determining disputes between the parties,
or any administrative action involving civil
consequences is in issue. These principles
are well settled. The first and foremost
principle is what is commonly known as
audi alteram partem rule. It says that no
one should be condemned unheard. Notice
is the first limb of this principle. It must be
precise and unambiguous. It should apprise
the party determinatively of the case he has
to meet. Time given for the purpose should
be adequate so as to enable him to make
his representation. In the absence of a
notice of the kind and such reasonable
opportunity, the order passed becomes
wholly vitiated. Thus, it is but essential
that a party should be put on notice of the
case before any adverse order is passed
against him. This is one of the most
important principles of natural justice.
After all, it is an approved rule of fair play.
The concept has gained significance and
shades with time. When the historic
document was made at Runnymede in
1215, the first statutory recognition of this
principle found its way into the "Magna
Carta". The classic exposition of Sir
Edward Coke of natural justice requires to
"vocate, interrogate and adjudicate". In the
celebrated
case
of
Cooper
V.
Wandsworth Board of Works (1863)
143 ER 414 the principle was thus stated:
(ER p.420)

"[E]ven God himself did not pass
sentence upon Adam before he was called
upon to make his defence. ''Adam' (says
God), ''where art thou? Hast thou not
eaten of the tree whereof I commanded
thee that thou shouldest not eat?"

22. Principles of natural justice are
those rules which have been laid down by
the courts as being the minimum protection
of the rights of the individual against the
arbitrary procedure that may be adopted by
a judicial, quasi-judicial and administrative
authority while making an order affecting
those rights. These rules are intended to
prevent
such
authority
from
doing
injustice. Inquiries which were considered
administrative at one time are now being
546 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
considered as quasi-judicial in character.
Arriving at a just decision is the aim of
both quasi-judicial enquiries as well as
administrative
enquiries.
An
unjust
decision in an administrative enquiry may
have more far reaching effect than decision
in a quasi-judicial enquiry. [emphasis
supplied]

23. Concept of natural justice has
undergone a great deal of change in recent
years. Rules of natural justice are not rules
embodied always expressly in a statue or
in rules framed thereunder. They may be
implied from the nature of the duty to be
performed under a statute. What particular
rule of natural justice should be implied
and what its context should be in a given
case must depend to a great extent on the
fact and circumstances of that case, the
framework of the statute under which the
enquiry is held. The old distinction
between
a
judicial
act
and
an
administrative act has withered away. Even
an administrative order which involves
civil consequences must be consistent with
the rules of natural justice. The expression
"civil rights but of civil liberties, material
deprivations and non-pecuniary damages
in its wide umbrella comes everything that
affects a citizen in his civil life.

24. In D.K. Yadav Vs. J.M.A.
Industries; (1993) 3 SCC 259 the Apex
Court while laying emphasis on affording
opportunity by the authority which has the
power to take punitive or damaging action
held that orders affecting the civil rights or
resulting civil consequences would have to
answer the requirement of Article 14. The
Hon'ble Apex Court concluded as under: -

"The
procedure
prescribed
for
depriving a person of livelihood would be
liable to be tested on the anvil of Article
14. The procedure prescribed by a statute
or statutory rule or rules or orders
affecting the civil rights or result in civil
consequences would have to answer the
requirement of Article 14. Article 14 has a
pervasive procedural potency and versatile
quality, equalitarian in its soul and
principles of natural justice are part of
Article 14 and the procedure prescribed by
law must be just, fair and reasonable, and
not arbitrary, fanciful or oppressive."

25.

In
National
Building
Construction
Corporation
v.
S.
Raghunathan; (1998) 7 SCC 66, the Apex
Court in unequivocal words that a person
is entitled to judicial review, if he is able to
show that the decision of the public
authority affected him of some benefit or
advantage which in the past he had been
permitted
to
enjoy
and
which
he
legitimately expected to be permitted to
continue to enjoy either until he is
informed the reasons for withdrawal and
the opportunity to comment on such
reasons.

26. At this juncture, it would be
relevant to produce relevant portion of
paragraph 34 of the judgment rendered in
State Bank of Patiala and others v.
S.K.Sharma, JT 1996(3) SC 722. Though
this decision was given in a service matter
but the Hon'ble Apex Court has dealt with
the principles of natural justice and the
result, if it is not followed:-

(1)Where the enquiry is not governed
by
any
rules/regulations/
statutory
provisions and the only obligation is to
observe the principles of natural justice -
or, for that matter, wherever such
principles are held to be implied by the
very nature and impact of the order/action
- the Court or the Tribunal should make a
distinction between a total violation of
2 All] Ram Kripal Yadav V. State of U.P. and others
547
natural justice (rule of audi alteram
partem) and violation of a facet of the said
rule, as explained in the body of the
judgment. In other words, a distinction
must be made between "no opportunity"
and no adequate opportunity, i.e. between
"no notice"/"no hearing" and "no fair
hearing". (a) In the case of former, the
order passed would undoubtedly be invalid
(one may call it "void" or a nullity if one
chooses to). In such cases, normally,
liberty will be reserved for the Authority to
take proceedings afresh according to law,
i.e. in accordance with the said rule (audi
alteram partem). (b) But in the latter case,
the effect of violation (of a facet of the rule
of audi alteram partem) has to be
examined from the standpoint of prejudice,
in other words, what the Court or Tribunal
has to see is whether in the totality of the
circumstances,
the
delinquent
officer/employee did or did not have a fair
hearing and the orders to be made shall
depend upon the answer to the said query.
(It is made clear that this principle (No.5)
does not apply in the case of rule against
bias, the test in which behalf are laid down
elsewhere.)

(2)While applying the rule of audi
alteram partem (the primary principle of
natural
justice)
the
Court/Tribunal/Authority
must
always
bear in mind the ultimate and over-riding
objective underlying the said rule, viz., to
ensure a fair hearing and to ensure that
there is no failure of justice. It is this
objective which should guide them in
applying the rule to varying situations that
arise before them.

27. In M/s Mahatma Gandhi
Upbhokta Sahkari Samiti vs. State of
U.P. and others 2001(19)LCD 513 the
controversy involved was that the order of
cancellation was passed on the basis of
inquiry conducted by Sub Divisional
Magistrate but the copy of the inquiry
report on which reliance was placed was
not furnished to the petitioner. A Division
Bench of this Court held that when report
of inquiry has been relied upon, that report
has to be furnished to the person, who is
affected by the same.

28. The said legal position has been
reiterated and followed in a number of
decisions rendered by this Court in the case
of Dori Lal vs. State of U.P. and others
2006(24)LCD 1521, it has been held that
the order cancelling the licence passed
without the petitioner being provided the
copy of the resolution of the village
Panchayat as well as the enquiry report, if
any
and
without
being
afforded
opportunity of submitting explanation and
hearing amounts to gross violation of
principle of natural justice and hence the
order is liable to be quashed.

29. In Rajpal Singh vs. State of U.P.
and others 2008(16) LCD 891, it has been
held by this Court that non-furnishing of
the inspection report of the Supply
Inspector, which was relied upon for
cancellation of the licence, amounts to
violation of principle of natural justice,
hence, the order of cancellation as well as
the appellate order was not sustainable in
the eyes of law.

30. Recently, a co-ordinate bench of
this Court in Sita Devi vs. Commissioner,
Lucknow & others [2011(29) LCD 626]
held that the action of the authority in
passing the order of cancellation without
supplying the copy of the preliminary
enquiry report while proving the charges
against the petitioner on the basis of said
enquiry report is hit by the grave legal
548 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
infirmity and whole action of the authority
is in great disregard of the principles of
natural justice.

31.

After
peeping
into
the
contentions of both the parties and the
series of case laws, referred to above, I am
of the considered opinion that the
cancellation of a agreement/licence of a
party is a serious business and cannot be
taken lightly. In order to justify the action
taken to cancel such an agreement/licence,
the authority concerned has to act fairly
and
in
complete
adherence
to
the
rules/guidelines framed for the said
purposes including the principles of natural
justice. The non-supply of a document
utilized against the aggrieved person
before the cancellation of his allotment of
fair price shop licence/agreement offends
the well-established principle that no
person should be condemned unheard.

32. Thus from the series of decisions,
referred to hereinabove, it clearly comes
out that the preliminary enquiry report,
inspection report or complaint or any other
document which is utilized by the authority
while cancelling the licence of a fair price
shop licence, same has to be supplied to
the licence holder and personal hearing is
also
to
be
afforded
otherwise
the
proceedings would be in blatant disregard
of the principles of natural justice.

33. In view of the above, the
impugned orders passed by the appellate
authority and the order of cancellation are
hereby quashed. Needless to say that this
order shall not preclude the competent
authority from passing appropriate order in
accordance with law.

34. All the writ petitions stand
allowed in above terms.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.04.2011

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE RAN VIJAY SINGH, J.

Civil Misc. Writ Petition No. 4567 of 2011

Khem Singh Pachhara
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Swarn Kumar Srivastava
Sri Anil Kumar Srivastava

Counsel for the Respondents:
Sri P.K.Mishra
Sri B.D. Madhyan
Sri Satish Mandhayan
Sri S.K. Tripathi
C.S.C.

Constitution of India Art. 226, 243-ZG-
Writ Jurisdiction-Scope-Petition of Quo
Warranto-Questioning the eligibility and
election of Respondent No. 8 as member
of Nagar Panchayat-argument that the
petitioner is not a candidate-can not be
forced
to
file
election
petition-held
misconceived-in view of clear cut bar
contained
under
Art.
243Z-G
only
remedy to file election Petition.

Held: Para 21

The Apex Court in the said judgment has
also
noticed
the
submission
as
to
whether the writ of quo warranto can be
issued when an incumbent is holding an
elected office by virtue of election. The
answer was given in negative. It was
held that challenge essentially is to the
election of the appellant and hence the
bar under Article 243 ZG is attracted. The
appeal was allowed and the judgement
of the High Court was set-aside. The
above judgment of the Apex Court
applies in the facts of the present case