# Rama Shankar v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 1577
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-26
- **Case number:** Misc. Single No. 21408 of 2018
- **Bench:** Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rama-shankar-v-state-of-u-p-ors-45264
- **Pages:** 5

## Headnote

C.S.C., Kaushal Mani Tripathi

A. Fair Price shop-license cancelled-on
the basis of-statements & affidavits filed
by card holders submitted behind the
back-such affidavits were not providedno opportunity to cross examine such
card holders-copy of report of area supply
inspector
also
not
provided-grounds
urged in defence has not been dealt in
impugned order-order quashed.

Writ Petition allowed. (E-8)

## Text

1578 INDIAN LAW REPORTS ALLAHABAD SERIES
conducive to the growth of a healthy and
vibrant democracy. Therefore, after the
notification for election has been issued,
no writ petition should be entertained
challenging
the
correctness
of
the
electoral roll. The election of the returned
candidate can also not be challenged on
the said ground either by filing a writ
petition or by means of an election petition
as provided in the statute. However, if
some gross procedural error has been
committed in the preparation of the
electoral roll, like not publishing the draft
electoral roll or not giving opportunity for
making an application for either deletion
or addition of names, the action of the
authorities in such cases will not be
immune from challenge under Article 226
of the Constitution provided the same is
made promptly and before the notification
for holding the election is issued."
(emphasis supplied)

13. In view of the settled legal
position, the election petition filed by the
petitioner challenging the election of
respondent no. 7 to the office of Pradhan,
on the ground that some persons were
illegally included in the electoral roll was
not maintainable and has rightly been
dismissed by the Prescribed Authority. For
the same reason, the revision preferred by
the petitioner against the said order has
been dismissed by the District Judge at the
admission stage. No case for interference
with the impugned orders is made out.

14. The writ petition is absolutely
misconceived and is accordingly dismissed
at the admission stage.

15. Costs made easy.
----------

(2020)1ILR 1577
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.11.2019

BEFORE
THE HON'BLE RAKESH SRIVASTAVA, J.

Misc. Single No. 21408 of 2018

Rama Shankar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ram Kumar Srivastava

Counsel for the Respondents:
C.S.C., Kaushal Mani Tripathi

A. Fair Price shop-license cancelled-on
the basis of-statements & affidavits filed
by card holders submitted behind the
back-such affidavits were not providedno opportunity to cross examine such
card holders-copy of report of area supply
inspector
also
not
provided-grounds
urged in defence has not been dealt in
impugned order-order quashed.

Writ Petition allowed. (E-8)

(Delivered by Hon'ble Rakesh Srivastava,J.)

1. The petitioner was a fair price
shop
licensee.
The
Sub-Divisional
Magistrate, Sadar, Gonda - respondent
no.3 herein, by his order dated 11.04.2018,
has cancelled the license of the petitioner.
The appeal preferred by the petitioner
against the said order has been dismissed
by the Additional Commissioner (Admin),
Devi Patan Mandal, Gonda - respondent
no.2, by his order dated 13.07.2018. Both
the said orders are under challenge in this
writ petition.

2. On the complaint made by one
Manoj Kumar regarding the alleged
1 All. Rama Shankar Vs. State of U.P. & Ors.
1579
irregularities being committed by the
petitioner in the distribution of the essential
commodities, the Area Supply Inspector
allegedly made a spot inspection, recorded the
statement of 28 card holders / their family
members present on the spot and submitted his
report to the respondent no. 3 on 06.02.2018.
On the basis of the said report, license of the
petitioner was suspended by the respondent no.
3. By the same order the petitioner was
required to submit his reply to the charges
levelled against him within the time mentioned
in the said order. A perusal of the suspension
order cum show cause notice would show that
it only contained the gist of statements alleged
to have been made by 28 card holders.

3. On 14.03.2018 the petitioner
submitted his reply to the show cause
notice and denied the charges levelled
against him. Alongwith his explanation,
the petitioner submitted the affidavits of
18 card holders to show that the charges
leveled against the him were unfounded.
After receiving the petitioner's reply,
respondent no. 3 accepted the affidavits
filed by 14 card holders behind the back of
the petitioner. Thereafter, the respondent
no.3, by his order dated 11.04.2018,
cancelled the fair price shop license of the
petitioner holding that the allegations
made against the petitioner were proved.
The order dated 11.04.2018 was passed
without furnishing to the petitioner the
copies of the affidavits filed by the
witnesses and without affording any
opportunity to the petitioner to cross
examine them. The appeal preferred by the
petitioner against the said order has been
dismissed by the respondent no. 2 by his
order dated 13.07.2018.

4. Sri Ram Kumar Srivastava, the
learned counsel for the petitioner has
submitted that the license of the petitioner
has been cancelled by the respondent no. 3
without following the procedure laid down
in the Government order dated 29.07.2004.
The counsel submits that neither the copies
of the statements of the card holders
alleged to have been recorded by the Area
Supply Inspector nor a copy of the report
submitted by him was furnished to the
petitioner. He has further submitted that
the affidavits filed by 14 card holders
behind the back of the petitioner were also
not made available to the petitioner and he
was also not given any opportunity to
cross examine them. The counsel submits
that the cancellation order having been
passed without holding any inquiry and in
gross violation of the principles of natural
justice cannot be sustained. He has further
submitted that the order of respondent no.
3 was challenged by the petitioner before
the respondent no. 2, specifically on the
aforesaid ground. However, the respondent
no. 2 dismissed the petitioner's appeal
without considering and recording any
finding on the issues raised before him.
Per contra the learned Standing Counsel
appearing
on
behalf
of
the
Staterespondents has supported the impugned
order.

5. Heard the learned counsel for the
parties and perused the record.

6. The State Government has issued
a Government Order dated 29.07.2004,
laying down the procedure for suspending/
cancelling
the
fair
price
shop
license/agreement. Paragraph nos. 2, 4,
and 5 of the said Government Order being
relevant are being quoted below:

"2. mDr i`"BHkwfe esa eq>s ;g dgus
dk funs'k gqvk gS fd xzkeh.k ,oa 'kgjh {ks=ksa dh
mfpr nj dh nqdkuksa ds fuyEcu @fujLrhdj.k
ds lEcU/k esa fuEu izfdz;k dk ikyu fd;k tk,A
1580 INDIAN LAW REPORTS ALLAHABAD SERIES

1⁄411⁄2 mfpr nj dh nqdku dk fuyEcu
ek= fdlh O;fDr dh f'kdk;r ds vk/kkj ij ugha
fd;k tk;A ;fn fdlh nqdkunkj ds fo:)
fdlh lzksr ls f'kdk;r izkIr gksrh gS rks igys
mldh izkjfEHkd tkap djk;h tk,A ;fn izkjfEHkd
tkap esa nqdkunkj ds fo:) ,slh xEHkhj
vfu;ferrk,a izFke n`"V;k fl) gks jgh gksa
ftuds vk/kkj ij nqdkunkj dh nqdku fujLr
gksus dh lEHkkouk gks rHkh nqdku dks fuyfEcr
fd;k tk; vkSj lkFk gh lkFk nqdkunkj dks
dkj.k crkvks uksfVl tkjh fd;k tk, fd mldh
nqdku D;ksa u fujLr dj nh tk,A ;fn izkjfEHkd
tkap esa ik;k tk; fd vfu;ferrk bruh xEHkhj
ugha gS fd nqdku ds fujLrhdj.k dh lEHkkouk
gks rks dsoy dkj.k crkvks uksfVl tkjh fd;k
tk;A fuyEcu vkns'k@dkj.k crkvksa uksfVl ,d
Lihfdax vkMZj gksuk pkfg, rFkk mlesa izkjfEHkd
tkap esa ik;h x;h mu lHkh vfu;ferrkvksa dk
fooj.k gksuk pkfg, ftudk mRrj nqdkunkj ls
visf{kr gksA

1⁄421⁄2 1⁄4d1⁄2 [kk| foHkkx ds vf/kdkfj;ksa
@ ftyk iz'kklu ds vf/kdkfj;ksa @vU; izkf/kd`r
O;fDr;ksa }kjk mfpr nj dh nqdku ds vkdfLed
fujh{k.k ds nkSjku ;fn ik;k tkrk gS fd
nqdkunkj }kjk dksbZ xEHkhj vfu;ferrk dh x;h
gS rks Hkh nqdku dks fu;qfDr vf/kdkjh }kjk vius
foosd dk iz;ksx djrs gq, fuyfEcr fd;k tk
ldrk gSA

1⁄4[k1⁄2 [kk| foHkkx ds vf/kdkfj;ksa @
ftyk iz'kklu ds vf/kdkfj;ksa @ vU; izkf/kd`r
O;fDr;ksa }kjk ;fn nqdkunkj dksbZ vfu;fer
dk;Z] forj.k esa xM+cM+h ;k vuqlwfpr oLrqvksa dh
dkykcktkjh djrs gq, idM+k tkrk rks Hkh
fu;qfDr vf/kdkjh }kjk vius foosd dk iz;ksx
djrs gq, nqdku dks fuyfEcr fd;k tk ldrk
gSA

mDr ifjfLFkfr;ksa esa nqdku ds
fuyEcu dh fLFkfr esa Hkh Lihfdax vkMZj ls
fuyEcu vkns'k tkjh fd;k tk;sxk ftlesa lHkh
vfu;ferrkvksa dk mYys[k gksxk rFkk nqdkunkj
dks dkj.k crkvks uksfVl tkjh fd;k tk;sxk fd
D;ksa u mldh nqdku fujLr dj nh tk;A

4- fuyfEcr dh x;h nqdkuksa ds
fo:) tkap dh dk;Zokgh vf/kdre ,d ekg esa
vfuok;Z :i ls iwjh dh tk;sxh rFkk tkap esa
lEcfU/kr nqdkunkj dks lquokbZ dk iwjk ekSdk
fn;k tk;sxkA lEcfU/kr nqdkunkj dk ;g
nkf;Ro gksxk fd og tkap esa viuk iwjk lg;ksx
ns rkfd tkap dk dk;Z tYnh ls tYnh iwjk fd;k
tk lds rFkk fu;qfDr izkf/kdkjh }kjk izdj.k esa
xq.k&nks"k ds vk/kkj ij vfUre fu.kZ; fy;k tk
ldsA ;fn nqdkunkj }kjk tkap esa lg;ksx ugha
fn;k tk jgk gks vkSj tkap esa foyEc djus dk
iz;kl fd;k tk jgk gks rks nqdkunkj dks bl
vk'k; dk Hkh uksfVl tkjh fd;k tk;sxk vkSj
viuk i{k j[kus dk vfUre volj iznku fd;k
tk;sxkA

5- tkap dh dk;Zokgh vf/kdre ,d
ekg esa iw.kZ djds fu;qfDr izkf/kdkjh }kjk izdj.k
esa vfUre fu.kZ; fy;k tk;sxk vkSj xq.k nks"k ds
vk/kkj ij ,d Lihfdax vkMZj tkjh fd;k
tk;sxkA bl vkns'k esa ;g Li"V mYys[k gksuk
pkfg, fd lEcfU/kr nqdkunkj dks lquokbZ dk
volj fn;k x;k vkSj mls lquk x;kA ;fn
nqdkunkj us tkap esa lg;ksx ugha fd;k gks vkSj
lquokbZ ds volj dk tkucw>dj mi;ksx u
fd;k gks rks vfUre vkns'k esa bl ckr dk Hkh
iwjk mYys[k gksuk pkfg, fd nqdkunkj dks volj
iznku fd;k x;k rFkk vfUre uksfVl fn;k x;k
ijUrq mlus tkucw> dj volj dk mi;ksx ugha
fd;k vkSj tkap esa lg;ksx ugha fd;kA"
(emphasis supplied)

7. As per clause 4 of the Government
Order dated 29.07.2004, before cancelling the
fair price shop license, the Competent
Authority is obliged to issue a show cause
notice containing the charges levelled against
the licensee. The Competent Authority is
required to pass a speaking order after
holding an oral inquiry in accordance with the
principles of natural justice. As per the said
Government order, in case the license holder
is not cooperating in the inquiry, the
Competent Authority is obliged to again issue
a notice to that effect and afford a last
opportunity to the license holder.

8. In Puran Singh v. State, (2010) 2
UPLBEC 947, a Full Bench of this Court
1 All. Rama Shankar Vs. State of U.P. & Ors.
1581
has held that paragraph nos. 4 and 5 of the
Government
order
dated
29.07.2004
contemplate a full fledged inquiry before
the license/ agreement of a fair price shop
is cancelled. The Full Bench has held that
as per the Government order dated
29.07.2004 an opportunity of hearing is
required before passing an order of
cancellation.

9. In Writ - C No. 3611 of 2014,
Sanjay Kumar v. State, following Puran
Singh (Supra) a learned Single Judge of
this Court has held as follows:

"The procedure for holding an
inquiry for cancelling the licence of the
fair price shop has been provided in the
Government Order dated 29.07.2004 read
with
U.P.
Essential
Commodities
Distribution Order 2004.

The
aforesaid
Government
Order and Distribution Order came up for
consideration before the Full Bench of this
Court in case of Puran Singh Vs. State of
U.P. and others 2010 (3) ADJ 659 (FB).
The Court considering para 4 and 5 of the
Government Order dated 29.07.2004 held
that it contemplates a full-fledged inquiry
pursuant to the show cause notice for
cancellation and then a final decision in
the matter.

The
aforesaid
decision
was
followed by the learned Single Judge in
his judgement and order dated 28.11.2014
passed in Writ-C No. 12737 of 2013 and
referring to paragraph 35 of the Full Bench
decision in Puran Singh's case his
Lordship observed that a full-fledged
inquiry is necessary before cancelling the
agreement and it would require service of
the charges, along with material in support
of each charge, the information about the
place and date of inquiry, the statements of
persons on whose complaint inquiry was
started or in a case of suo-motu inquiry,
the statements of the persons appearing
before the Inquiry Officer.

In other words it means that an
independent inquiry before passing an
order of cancellation of licence to run a
fair price shop is mandatory and a show
cause notice simplicitor is not sufficient to
conform to the principles of natural
justice.

It
is
obligatory
upon
the
authorities to hold a full-fledged inquiry
against the fair price shop dealer, after
serving of the charge sheet with regard to
the date and place where the hearing will
took place and to give an opportunity of
hearing. This is in addition to the show
cause notice issued for the purposes of
suspension of the licence of the fair price
shop."
(emphasis supplied)

10. In Laloo Singh vs. State, (2015) 6 All
LJ 613 this Court has held that the cancellation
of an agreement/license of a party is a serious
business and cannot be taken lightly. In order
to justify the action taken to cancel such an
agreement/license, 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.

11. This Court in Rajpal Singh v.
State of U.P. and others, 2008 (26) LCD
891 has held that where fair price shop
license of a dealer is cancelled by placing
reliance on the report of the Supply
Inspector and the copy of the report is not
furnished to the dealer, such an order is in
contravention of principles of natural
justice and is liable to be set aside.

14. In the present case, a perusal of
the order dated 11.04.2018 would show
that the license of the petitioner has been
1582 INDIAN LAW REPORTS ALLAHABAD SERIES
cancelled only on the basis of the
statements and affidavits filed by the card
holders and that too without supplying
copies of the said statements / affidavits to
the petitioner and without affording an
opportunity to the petitioner to cross
examine them. A copy of the report
submitted by the Area Supply Inspector
has also not been supplied to the
petitioner. Moreover, in his order, the
respondent no. 3 has not at all discussed
the grounds urged by the petitioner in his
reply
in
support
of
his
defence.
Admittedly, the license of the petitioner
has been cancelled without affording any
opportunity of hearing to the petitioner and
without holding any inquiry, whatsoever.

15. In view of the settled legal
position, the cancellation of the petitioner's
fair price shop agreement / license is
ostensibly
in
contravention
of
the
principles of natural justice and cannot be
sustained. The Appellate Authority has
also failed to rectify the error committed
by the Sub-Divisional Magistrate and as
such the order passed by the Appellate
Authority is also liable to be set aside
alongwith the order of the Competent
Authority.

16. For the aforesaid reasons, the
writ petition is allowed. The impugned
order dated 11.04.2018 passed by the SubDivisional Magistrate and the order dated
13.07.2018 passed by the Additional
Commissioner
(Admin)
are
hereby
quashed.

17. No order as to cost.
----------
(2020)1ILR1581

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.12.2019

BEFORE
THE HON'BLE RAJAN ROY, J.

Misc. Single No. 25879 of 2019

Ram Prasad & Ors. ...Petitioners
Versus
A.D.J., Sitapur & Ors. ...Respondents

Counsel for the Petitioners:
Vidya Bhushan Pandey,Illegible, Krishna
Kumar

Counsel for the Respondents:
-----

A.
Challenging-impugned
orderdismissing sec-5 limitation applicationfiled in an appeal-whether maintainable
u/Art
227-to
be
treated
as
order
disposing application and order passed in
appeal-decree to be prepared-resulting in
consequential dismissal of appeal-would
facilitate filing of Second Appeal u/s.100.

B. Held, In this view of the matter, as,
considering the decision of the Supreme
Court in Shyam Sunder Sharma (supra),
even such orders passed on application
under section 5 of the Act 1963, are to be
treated as not only disposing the said
application but are also to be treated as
an order passed in appeal, rejecting it,
irrespective of the fact whether or not a
consequential order of dismissal is passed
in such appeal and a second appeal would
lie under section 100 C.P.C. against such
an order, a decree of such an order
should also be prepared treating it an
order
passed
on
the
appeal
itself,
resulting in consequential dismissal of
the appeal. This is the ratio of the Full
Bench of the Kerala High Court om
Thambi's
case
(supra)
wherein
the
provisions of the C.P.C., Limitation Act
and various decisions on this issue have
been considered elaborately, which has
been approved by the Supreme Court in
Shyam Sunder's case (supra). In fact, it