Smt. Mahmooda Begum v. State of Uttaranchal & Ors.

(cid:147)4(cid:133).It is stated in the counter affidavit that earlier petitioner(cid:146)s husband Arif Khan used to run the fair price shop, who was found involved in mass irregularities in running the fair price shop and his licence was cancelled. Thereafter in 1998, the petitioner (wife of Sri Arif Khan) got the licence to run the fair price shop. In Para 6 of the counter affidavit it has been stated that some 500 people submitted a complaint to the Sub Divisional Magistrate regarding gross irregularities being committed by the petitioner in distribution of the essential commodities to the ration card holders. The inquiry was conducted in the matter by Nayab Tehsildar, Roorkee, who found the complaints made by the people to be correct and submitted his report to the Sub Divisional Magistrate. It is further stated in the counter affidavit that on 19.06.2007, the Sub Divisional Magistrate wrote a letter to the District Magistrate in the matter. Finally the matter was referred to the District Supply Officer and after giving show cause notice to the petitioner and considering his reply the impugned order cancelling the licence was passed.(cid:148)

5. Learned counsel for the appellant also invited our attention to paragraph 7 of the impugned judgment, wherein learned Single Judge had categorically noticed that (cid:147)Had there been only the abovementioned ground explained by the petitioner it could have been said that the authorities were wrong in cancelling the licence of the 3 petitioner and in upholding the same(cid:148). The ground referred to by the learned Single Judge in his aforesaid observations was the one depicted in the show cause notice (dated 14.6.2007) issued to the appellant. The aforesaid observation was made by the learned Single Judge, was made because the appellant had been able to satisfy the learned Single Judge, that the impugned order (dated 3.7.2007) could not be sustained on the basis of the reason recorded in the show cause notice (dated

14.6.2007). Accordingly it is submitted that the basis on which the show-cause notice was issued to the appellant for cancellation of the licence of the fair price shop, was accepted as not valid by the learned Single Judge. Referring to the conclusion drawn in paragraph 8 of the judgment, it is submitted that the allegations, extracted in paragraph 4 hereinabove, were the sole basis for dismissing the writ petition (vide the impugned order dated 29.10.2007).

6. Learned counsel for the appellant also invited our attention to a report submitted by the Sub Divisional Magistrate dated 19.6.2007, which was placed on the pleadings of the writ petition by the learned counsel representing respondent no. 4 to authenticate that serious charges were levelled against the appellant. It is submitted that the allegations relied upon by the learned Single Judge as also those contained in the report dated

19.6.2007 were a one sided affair, inasmuch as, no opportunity was afforded to the appellant to tender her explanation to the same or to produce material before the respondents to controvert the same. It is, therefore, the vehement contention of the learned counsel for the appellant, that the respondents having taken consideration, facts which were not incorporated in the 4 show-cause notice issued to her, and the learned Single Judge also having relied upon the same, the action of the respondents, as also, the determination rendered by the learned Single Judge were liable to be set aside.

7. We have given our thoughtful consideration to the solitary contention advanced by the learned counsel for the appellant. Mr. H.M. Raturi, Advocate representing the official respondents acknowledges that in the show-cause notice issued to the appellant, the allegations extracted hereinabove from the judgment rendered by the learned Single Judge, had not been incorporated. He also affirms that the enquiry report submitted by the Sub Divisional Magistrate through his communication dated 19.6.2007 was also not the basis of the show-cause notice issued to the appellant.

8. In view of the above, we are satisfied that a reasonable opportunity had not been afforded to the appellant to put-forth her claim, or to repudiate the factual position that constituted the basis of the action taken against the appellant. The cancellation of the licence to run the fair shop issued to the appellant could not have been ordered without inviting the attention of the appellant to the alleged irregularities, and without affording her an opportunity to repudiate the same. We are, therefore, satisfied that the orders passed by the respondents, referred to in the opening paragraph of the instant order, as also, the judgment rendered by the learned Single Judge dated 29.10.2007 dismissing the Writ Petition (M/S) No. 1522 of 2007 are liable to be set aside as the same are in clear violation of the rules of natural justice. The same are accordingly hereby set aside. 5

9. Despite our aforesaid conclusion, we are of the view that the licence issued to the appellant to run a fair price shop does not deserve to be restored forthwith. This is on account of the factual position noticed by the learned Single Judge (relevant portion whereof has been extracted hereinabove) depicting that a large number of persons, numbering approximately 500, had made complaints against the running of the fair price shop at the hands of the appellant to the Sub Divisional Magistrate. The report of the Sub Divisional Magistrate dated 19.6.2007 also, prima facie indicates, that the charges levelled by the complainants stood established. Accordingly, in the peculiar facts and circumstances of this case, we consider it just and appropriate to allow the respondents to issue a fresh show cause notice to the appellant, if the respondents are so advised, and pass a fresh order after affording her an opportunity to respond to the same, within three months from the date of receipt of the certified copy of this order. Needless to mention, that if no show cause notice is issued to the appellant and/or if a final order based on the reply furnished by the appellant is not passed within three months from the date of receipt of a certified copy of this order, the original licence issued to the appellant to run the fair price shop will be deemed to have been restored.

10. The instant Special Appeal stands disposed of in the aforesaid terms. (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J.) Rathour

16.3.2010