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2019 Supreme(All) 2637
IN THE HIGH COURT OF ALLAHABAD AT LUCKNOW BENCH
Ved Prakash Vaish, J.
Sarfaraj Khan – Appellant
Versus
State of U.P. – Respondent
Misc. Single No. 26804 of 2017
Decided On : 04-11-2019
Advocate Appeared:
For the Appellant : Satish Kumar Sharma and Awanish Kumar Bhatt
Point of law: While interpreting legal provisions, a court of law cannot be unmindful of hard realities of life. In our opinion, the approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than "precedential"
Headnote:
Fair Price Shop - License Cancelation Issue -Principles of natural justice are not embodied rules and not straightjacket formula to be applied in every case indiscriminately. The principles of natural justice are not capable of precised definition and vary inapplicability of facts and circumstance of each case. The underlying principles of natural justice involved under common law is to check arbitrariness, inaction and these principles imply only a duty to act fairly
Facts of the case:
By way of the present petition, the petitioner seeks quashing of the order passed by Joint Commissioner (Food), Lucknow Division, Lucknow as well as order passed by the U.P. Ziladhikari Nighasan, District-Kheri, whereby the license of the petitioner of the fair price shop was cancelled
Finding of the court: –
in judging the validity of an order when the complaint is about noncompliance with the principles of natural justice, in cases where the attack is on the ground of bias, the distinction has to be withdrawn between the cases of' no notice' or 'no hearing' and cases of 'no fair hearing' or 'no adequate hearing' – If the defect is of the former category, it may automatically make the order invalid but if the defect is of the latter category, it will have to be further examined whether the defect has resulted in prejudice and failure of justice and it is only that such a conclusion is reached that the order may be declared invalid.
Result: – Writ Petition Dismissed
ORDER :
Ved Prakash Vaish, J.
1. Heard Sri. Satish Kumar Sharma, learned counsel for the petitioner and Sri. Sunil Bajpai, learned Additional Chief Standing Counsel for the respondents.
2. By way of the present petition, the petitioner seeks quashing of the order dated 18th September, 2017 passed by Joint Commissioner (Food), Lucknow Division, Lucknow as well as order dated 18th March, 2017 passed by the U.P. Ziladhikari Nighasan, District-Kheri, whereby the license of the petitioner of the fair price shop was cancelled.
3. Brief facts as set out in the present case are that the petitioner was the licensee of the fair price shop in village panchayat Khamariya Koilar, Vikas Khand and Tahsil Nighasan, District-Kheri, he runs the fair price shop of the village panchayat for the last several years and there was neither any complaint in respect of the irregularities in distribution of the essential commodities to the cardholders, nor any complaint in respect of the black marketing was made against him.
4. It is stated that the petitioner distributed the essential commodities to the cardholders each and every month in presence of the Supervisor, and when the Supervisor verified the same, then next month quota was lifted, so there is no illegality in distribution of the essential commodities.
5. On 12th September, 2016, Sri. Anil Prakash Shukla, Revenue Inspector/Supervising Authority of the concerned Tahsil informed the Ziladhikari Nighasan that the date of distribution of the fair price shop was fixed on 9th and 10th of September, 2016 and when he reached at the shop of the petitioner on 9th September, 2016, the petitioner stated that it was Friday/Jumma so he will not distribute the commodities. On the next day i.e., on 10th September, 2016, when the Revenue Inspector visited the shop of the petitioner, he was informed that the petitioner had gone in Nighasan, and therefore, the commodities were not distributed.
6. On 12th September, 2016 when the Revenue Inspector reached at the shop of the petitioner, it was informed that all the articles had been distributed on 11th September, 2016. However, the customers informed that the petitioner had not distributed the articles. Complaints were made against the petitioner that he either did not distribute the articles or the articles distributed were of less quantity and at a higher rate. Statements of 48 card holders were recorded.
7. Vide order dated 13th October, 2016, the Sub-Divisional Magistrate stated that in view of the statements of the card holders and the inspection, the petitioner violated the Government Order. A show-cause notice dated 13th October, 2016 was issued to the petitioner and the petitioner was directed to file reply within one week and to present before authority. The petitioner duly replied the show-cause notice on 17th November, 2016. Another notice dated 3rd December, 2016 was given to the petitioner and it was directed to the petitioner to file reply within three days, notice was received by the petitioner on 16.12.2016 but the petitioner did not reply the same.
8. Vide order dated 18th March, 2017, the Sub-Divisional Magistrate (S.D.M.), Nighasan, District-Kheri cancelled the license of the petitioner. The petitioner filed an appeal against the said order of the Sub-Divisional Magistrate before the Joint Commissioner (Food) which was dismissed vide order dated 18th September, 2017 which is impugned in the present petition.
9. Counter-affidavit has been filed by respondent No. 3, in which he denied the allegations made in the writ petition.
10. Learned counsel for the petitioner urged that the impugned orders passed by Joint Commissioner (Food) and the Sub-Divisional Magistrate are totally illegal, unjust and improper and have been passed without application of mind and thus deserve to be set aside.
11. It was also contended by learned counsel for the petitioner that the impugned orders are non-speaking orders and the same have been passed without perusing the reply and re
