By the Court.—Heard learned counsel for the petitioner and learned Standing Counsel and perused the record.

2. The petitioner seeks to challenge the impugned order dated 5.9.2006/Annexure-1 to the writ petition ( admittedly received by the petitioner on September 11, 06 as disclosed in the reply of the petitioner ( copy of which has been enclosed as Annexure-2 to the writ petition by means of which his fair price shop licence/agreement has been suspended requiring him to file explanation within a week. There is no averment in the writ petition stating therein that the said order has been complied with by the petitioner.

3. The main grievance of the petitioner is that he was not given opportunity before the impugned order/Annexure-1 to the writ petition was passed.

4. Learned counsel for the petitioner has place reliance upon Clause 8(2), U.P. Scheduled Commodities Dealers (Licensing and Restriction on Hoarding) Order, 1989. For convenience Clause 8(2) of the Order, 1989 is reproduced below:

“8. Contravention of condition of licence: No licence or his agent or servant or any other person acting on his behalf shall contravene any provision of this order or any of the terms or conditions of the licence.

(2). If the licensing authority is satisfied that any such licensee or his agent or servant or any other person acting on his behalf has contravened any provision of this order or the terms and conditions of the licence, it may without prejudice to any other action that may be taken against him by order in writing cancel or suspend his licence either in respect of such of these commodities as it may think fit:

Provided that no order shall be made under this sub- clause unless the licensee has been given a reasonable opportunity of stating his case against the proposed cancellation or suspension, as the case may be.”

5. Learned counsel for the petitioner further referred to the Division Bench decision of this Court in the case of Ganesha Vs. District Magistrate, Mahoba and another:[2001 (43) ALR 184]. In the said judgment their Lordships referred to the proviso of Clause 8(2) ( already noted above).

6. Learned Standing Counsel, however, has drawn our notice to the subsequent Government Order No. 2260/29.6.2004-300 Sa/03 dated 29.7.04 and pointed out that now there is no provision for giving opportunity before passing an order of suspension, and the earlier Order of 1989 in this respect is now no more in existence. The said Order, 1989 has been rescinded vide Clause 24 of ‘The U.P. Scheduled Commodities Distribution Order, 1990, which reads:

“24. Rescission.—The Uttar Pradesh Food Grains and other Essential Articles Distribution Order, 1977, published in Gazette vide Notification No. 4851/XXIX-F-11178)-67, dated December 3,1977, and the Uttar Pradesh Scheduled Commodities (Regulation of Distribution) Order, 1989, published in Gazette, vide Notification No. 2350/XXIX-F-11-44-88, dated August 31, 1989 are hereby repealed and the provisions of Sections 6,8 and 24 of the General Clauses Act, 1897 ( Act No. 10 of 1897) shall apply as they apply in relation to the appeal and re-enactment of a Central Act.”

7. According to him, the above Order of 1989 and the decision of Division bench of this Court in Ganesha( Supra) are no more relevant and hence of no avail to the petitioner.

8. He further pointed out that in exercise of power conferred upon the State Government it issued a clarificatory letter dated 29.7.2004 and referred to para 4 of the said Government letter which provides a procedure different to the procedure contained in Clause 8(2) of Government Order, 1989. Para 2 of the said State Government letter dated 29.7.2004 requires that on receipt of complaint preliminary inquiry be held and on that basis, if concerned authority finds that prima facie charges are serious which shall warrant cancellation, pass order of suspending licence and also simultaneously give show cause notice as to why licence be not cancelled. For conve