# Vijay Kumar Yadav v. State of U.P.through Secretary Civil Supply Civil Secretariat

- **Citation:** (2011) 3 ILRA 1324
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-11-24
- **Bench:** Rajiv Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-kumar-yadav-v-state-of-u-p-through-secretary-civil-supply-civil-41994
- **Pages:** 10

## Headnote

Constitution
of
India,
Article
226Principle of Natural Justice-cancellation
of license of Fair Price Shop-without
supplying the copy of complaint and the
enquiry
report-held-entails
civil
consequences-every authority exercising
quashi-judicial duty is bound to follow
the principle of Natural Justice-order not
sustainable-Petition
allowed
on
this
limited ground.

Held: Para 34

Thus
from
the series
of
decisions,
referred
to
herein-above,
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.
Case law discussed:
[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); (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]

## Text

1324 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Since, the matter before the Meditation
Center has been amicably settled and that
has been accepted by this Court, it will
be useless to remand the matter and force
the parties to face ordeal of the criminal
proceedings.

16. In view of above, the petition
under Section 482 Cr.P.C. is allowed and
criminal proceedings in Case No. 6818
of 2002(State of U.P. Vs. Surendra
Mishra and Ors.) arising out of Case
Crime No. 445 of 2002, under Sections
147, 504, 506 I.P.C. & Section 3(1)(X)
of SC/ST Act, P.S.-Kotwali Sadar,
District-Lakhimpur Kheri, are hereby
quashed
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.11.2011

BEFORE
THE HON'BLE RAJIV SHARMA,J.

Misc. Single No. - 4735 of 2008

Vijay Kumar Yadav

 ..Petitioner
Versus
State of U.P.Through Secretary Civil
Supply Civil Secretariat ...Respondents

Counsel for the Petitioner:
Sri P.N.Singh Kaushik

Counsel for the Respondents:
C.S.C

Constitution
of
India,
Article
226Principle of Natural Justice-cancellation
of license of Fair Price Shop-without
supplying the copy of complaint and the
enquiry
report-held-entails
civil
consequences-every authority exercising
quashi-judicial duty is bound to follow
the principle of Natural Justice-order not
sustainable-Petition
allowed
on
this
limited ground.

Held: Para 34

Thus
from
the series
of
decisions,
referred
to
herein-above,
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.
Case law discussed:
[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); (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. By means of this writ petition, the
petitioner has prayed for quashing the
impugned orders dated 24.07.2008 passed
by the respondent no.2 and order dated
08.04.2006/19.04.2006
passed
by
the
respondent no.4 contained in Annexure nos.
1 and 2 in the writ petition and also for
issuing a writ in the nature of mandamus
commanding the respondents not to give
effect the aforesaid impugned orders as well
as not to initiate the process for fresh
allotment of shop.

2. Heard learned Counsel for the
parties.

3. The petitioner is a Fair Price Shop
licensee and the question involved in this
case 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 licensee
while cancelling the licence, amounts to
3 All] Vijay Kumar Yadav V. State of U.P.through Secretary Civil Supply Civil Secretariat 1325
violation of principle of natural justice or
not. The assertion of the petitioner is that
the plea of opportunity of hearing and nonsupply 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.

4. 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. 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 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 nonstatutory 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. Sri Rakesh
Srivastava,
Standing
Counsel
also
contended that when a fair price shop
licence holder commits 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. 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
1326 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
plausible findings and only then, it was
dismissed. Therefore, the writ petitions are
liable to be dismissed on the aforesaid
grounds. 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."

5. 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, 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."
3 All] Vijay Kumar Yadav V. State of U.P.through Secretary Civil Supply Civil Secretariat 1327

6. 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.

7. 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."

8. 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
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."

9. 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.
1328 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

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.

13. 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 exercise of its
discretionary power under Article 226 of
the Constitution.

14. 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.

15. Against the order of cancellation,
the
petitioner
has
approached
the
Commissioner by filing appeal but the
appellate authority also dismissed his
appeal. Petitioner, after rejection of his
appeal, has 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. 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.

16. 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.

17. In the backdrop of the aforesaid
facts, the order of cancellation of license to
run fair price shop under the public
3 All] Vijay Kumar Yadav V. State of U.P.through Secretary Civil Supply Civil Secretariat 1329
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.

18. Next, the precise ground though
not taken in the counter affidavit but argued
by the 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.

19. Natural justice has a prime role to
play in the matter where the justice has to
be secured. Natural justice is another name
for commonsense justice. 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.

22.

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
1330 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
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?"

23. 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
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 quasijudicial enquiry. [emphasis supplied ]

24. 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.

25. 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 nonpecuniary damages in its wide umbrella
comes everything that affects a citizen in his
civil life.

26. 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
3 All] Vijay Kumar Yadav V. State of U.P.through Secretary Civil Supply Civil Secretariat 1331
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."

27. 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.

28. 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 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.

29. 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.

30. 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.
1332 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

31. 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.

32. 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.

33. 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
infirmity and whole action of the authority
is in great disregard of the principles of
natural justice.

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
wellestablished principle that no person should
be condemned unheard.

34. Thus from the series of decisions,
referred to herein-above, 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.

35. 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.

36. Accordingly, the writ petition
stands allowed .
---------
3 All] Phoolan V. State of U.P.
1333
APPELLATE JURISDICTION
CRIMINAL SIDE]
DATED: ALLAHABAD 14.10.2011

BEFORE
THE HON'BLE AMAR SARAN,J.
THE HON'BLE SHYAM SHANKAR TIWARI,J.

Criminal Jail Appeal No. - 5463 Of 2007

Phoolan

 ...Petitioner
Versus
State of U.P.

 ...Respondent

Counsel for the Petitioner:
Ms Seema Pandey (Amicus Curiae)

Counsel for the Respondents:
A.G.A.

Criminal Appeal-offence under Section
302
I.P.C.-conviction
of
life
imprisonment-challenged on ground-no
forensic
report
to
proof
the
blood
sustained 'Balkati'-was human blood-no
denial that said "Balkati" sent to forensic
laboratory-can
be
laps
on
part
of
prosecution-but can not be ground for
denial of prosecution evidence where the
appellant in statement under Section
313 has admitted the guilt showing
anguish for criticism of his "Guru"-
conviction
upheld-however
after
14
years
for
premature
release
under
section
433-A
be
considered
sympathetically.

Held: Para 25

Regarding the fact that there is no
forensic report on record confirming
whether the blood on the "Balkati" was
human bhood, but the factum that it was
sent to the forensic laboratory cannot be
denied. Not obtaining the report from
the forensic laboratory appears to be a
lapse of the prosecution and only on that
count, the prosecution evidence cannot
be discarded especially in view of the
fact that the appellant himself has
admitted in his statement under section
313 Cr.P.C that the "Balkati" has been
recovered from him.

(Delivered by Hon'ble Amar Saran, J.)

1. This jail appeal has been filed
against a judgement and order dated
10.06.2005 passed by the learned Sessions
Judge, Baghpat convicting and sentencing
the appellant Phoolan Singh to life
imprisonment under section 302 IPC.

2. The case of the prosecution was
that the informant Virendra Pal's father
Baljor, was smoking a "Hukka" in the Gher
of the adjoining house of Om Pal and
Arvind. At that time appellant-Phoolan
Singh, the servant of Arvind and Om Pal,
arrived there with a "Balkati" in his hand
and assaulted Baljor, who was badly
injured. This incident was witnessed by
Naresh, Om Prakash and Indrapal. The
report of this incident was lodged at 4.15
PM on 4.1.2004 at the police station
Ramala, district Bagpat under section 307
IPC by Virendra Pal.

3. The injured Baljore was medically
examined at CHC, Baraut at 5.00 PM on
4.12004 by PW 6 Dr. Ravindra Kumar, who
found the following injuries on his body:

1. Incised wound 5 cm x 1 cm into
bone deep over left side forehead 3 cm
above outer angle of left eye.

2. Incised wound 4 cm x 5 cm into
bone deep over left side skull, 5 cm above
middle of left eyebrow.

3. Incised wound 3 cm x 5 cm into
bone deep over left side back, 9 cm from
left ear.