High Court
Case Details
WP(C) 2251/2013 PRESENT HON’BLE MR JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (ORAL) This petition under Article 226 of the Constitution of India seeks qu ashing of order dated 4.4.2013 issued by the Sub Divisional Officer (Civil), Bi swanath Chariali cancelling the fair price shop licence of the petitioner. Petit ioner further seeks a direction to the respondents to allow him to operate his f air price shop as earlier. 2. Case of the petitioner is that he was running a fair price shop at Bamg aon, Biswanath Chariali under Licence No.BFS-12/98/FP/27. The fair price shop ru n by the petitioner on the strength of the aforesaid licence is his only source of livelihood. 3. According to the petitioner, he has been operating his fair price shop i n conformity with the legal requirements, maintaining cordial relation with his consumers. 4. On 13.3.2013, Sub Divisional Officer (Civil), Biswanath Chariali (Respo ndent No.3) alongwith some officials of Food and Civil Supplies Department, in cluding respondent No.4, made a sudden visit to the fair price shop of the petit ioner while he was not present. However, on receipt of information about the afo resaid visit, petitioner rushed back to his shop. The officials inspected the stock and sales book and left thereafter. 5. On 25.3.2013, a show cause notice was issued to the petitioner by respo ndent No.3 alleging discrepancies between physical stock and book entries. Peti tioner was asked to show cause within 3 days on receipt of the said notice as to why legal action should not be taken against him for violation of various provi sions of Assam Public Distribution of Articles Order, 1982. Responding to the s aid show cause notice, petitioner submitted his detailed reply dated 29.3.2013 d enying any such discrepancy or misappropriation of essential commodities. Rega rding discrepancy in atta (flour), he stated that because of poor quality, consu mers did not purchase the said commodity. To avoid financial loss, such atta was sold to a few consumers for use as fodder for their domestic cattle but it was sold as per the Government regulated price.
Legal Reasoning
1. In the meanwhile, on the very next day of issuing show cause notice i. e., on 26.03.2013, respondent No. 4 lodged first information before Biswanath Chariali Police Station alleging that there was reason to believe that petiti oner had misappropriated PDS commodities. Police authorities were requested t o take necessary steps as per law. The first information was treated as FIR a nd on the basis of the same, Biswanath Chariali P.S. Case No.69/2013 under Secti ons 420/409/379 IPC was registered. Apprehending arrest, petitioner approached t his Court by filing anticipatory bail application, which was registered as AB No.1397/2013. This Court by order dated 9.4.2013 granted interim pre-arrest bai l to the petitioner. 2. In the meanwhile, petitioner deposited the requisite fee for renewal of his fair price shop licence, the receipt of which was duly acknowledged by the office of respondent No.4. However, respondent No.3 issued the impugned order dated 4.4.2013 cance 3. lling the licence issued to the petitioner on the ground of violation of Orders 14 and 18 of the Assam Public Distribution of Articles Order, 1982. Though the p etitioner requested respondent No.3 to review such order, the same did not rece ive any response. 4. eliefs as noticed above. Aggrieved, petitioner has filed the present writ petition seeking the r 5. Contention of the petitioner is that the impugned cancellation of licenc e is in gross violation of the principles of natural justice and is therefore void. The said order was passed very hastily. There was no proper applicatio
Decision
n of mind and the impugned order is also without jurisdiction. Respondent No.3 has filed affidavit through Assistant Director of Food, 6. Civil Supplies and Consumer Affairs, Biswanath Chariali. He has stated that peti tioner was a PDS licensee covered under Licence No. BFS-12/98/FP/27. Petitioner received show cause notice on 27.3.2013 and had to submit his reply on or befor e 30.3.2013 but it was received belatedly on 1.4.2013. Reply of the petitione r was found not satisfactory. Inspector, Food, Civil Supplies and Consumer Affai rs, Biswanath Chariali lodged FIR against the petitioner before Biswanath Charia li Police Station on 26.3.2013 on the basis of enquiry conducted on 18.3.2013 where several discrepancies were noticed. Fair price shop licence of the petitio ner was valid up to 31.3.2013 and has not yet been renewed for the period 2013- 14. Licence of the petitioner has been cancelled for violation of the provisi ons of Assam Public Distribution of Articles Order, 1982. Licence was cancelle d after receiving the show cause reply which was not found satisfactory. Contend ing that there is no merit in the writ petition, the answering respondent seeks dismissal of the same. 7. In his reply affidavit, petitioner has stated that he received the sho w- cause notice on 27.3.2013 and sent the reply within 3 days. Receipt of the re ply after one day is not very material. Petitioner was not informed as to wheth er his show cause reply was satisfactory or not. Respondent No.3 straightway ca ncelled the liicence of the petitioner by the impugned order dated 4.4.2013. Pe titioner has further stated that interim bail granted to him by this Court on 9 .4.2013 was subsequently made absolute vide order dated 15.5.2013, which was pas sed after perusal of the case diary. Lodging of first information before consi dering petitioner’s show cause reply reflects the closed mind and biased attitu de of respondent Nos.3 and 4. Petitioner has further stated that there is wron g quoting of section in the impugned order as respondent No.3 could not have pa ssed order under Section 7 of the Essential Commodities Act, 1955 as such a po wer can be exercised only by a Special Judge on the judicial side. Petitioner has stated that the officials of the Food, Civil Supplies and Consumer Affairs visited his shop on 13.3.2013 but no physical verification of the stock was car ried out on 18.3.2013 as contended by respondent No.3. He has also denied that there was any discrepancy between the stock register and the physical stock of different PDS items. 8. Ghosh, learned Govt. Advocate, Assam, who has also produced the record. Heard Mr. K. Sarma, learned counsel for the petitioner and Mr. B.J. Mr. Sarma, learned counsel for the petitioner submits that a bare perusa 9. l of the show cause notice and the impugned cancellation order would disclose t he closed mind of the authority. They were determined to close down the fair pri ce shop of the petitioner. Alleging that no reasonable opportunity of hearing w as given to the petitioner, learned counsel submits that the impugned cancellat ion is in gross violation of the principles of natural justice and fair proced ure. Referring to various provisions of the Essential Commodities Act, 1955 and the Assam Public Distribution of Articles Order, 1982, learned counsel for the p etitioner submits that the impugned cancellation is legally not sustainable and requires to be set aside and quashed. 10. Opposing the submissions of Mr. Sarma, learned counsel for the peti tioner, Mr. Ghosh, learned Govt. Advocate submits that there is no infirmity in the impugned decision. Show cause notice was issued to the petitioner and his r eply though received belatedly, was duly considered. Since the reply was foun d to be not satisfactory, impugned order had to be issued. He submits that nothi ng much should be read into the act of immediate lodging of FIR as it was an ad ministrative step taken, for cancellation of licence and criminal prosecution fo r violation of the statutory provisions by the licensee are two different things . He submits that violation of statutory provisions in the distribution of PDS a rticles is a serious matter and has to be strictly enforced. He, therefore, se eks dismissal of the writ petition. Learned State Counsel has also produced t he record. 11. . Submissions made have been considered. Also perused the record produced To provide for the control of production , supply and distribution an 12. d trade and commerce of certain commodities treated as essential commodities, t he Essential Commodities Act, 1955 was enacted. In exercise of the powers confe rred by Section 3 of the Essential Commodities Act, 1955 read with the Governmen t of India, Ministry of Agriculture and Irrigation (Department of Food) Order No .GSR.800, dated June, 1978, State of Assam has framed the Assam Public Distribu tion of Articles Order, 1982( 1982 Order). 13. Order 14 provides that no holder of a licence issued under the 1982 O rder shall contravene any of the terms and conditions of the licence. As per Ord er 18, every appointed dealer shall during the shop hours display the stock of n otified articles alongwith their corresponding prices at a conspicuous place nea r the entrance to his business premises. Order 15(1) provides that if any lice nsee or any person acting on his behalf contravenes any of the terms and condit ions of the licence, then without prejudice to any other action that may be ta ken under the Essential Commodities Act, 1955, his licence may be cancelled or suspended by any order in writing of the Licensing Authority. Under Order 15(2) , no order of cancellation shall be made unless the licensee has been given reas onable opportunity of stating his case against the proposed cancellation. Howeve r, during the said proceeding, the Licensing Authority can suspend the licence b ut such suspension should not be for a period exceeding 90 days. Order 29 of t he 1982 Order provides for filing of appeal by any aggrieved person against an order passed under the 1982 Order. Coming to the present case, it is seen from the record that show cau 14. se notice was issued to the petitioner on 25.3.2013, received on 27.3.2013. Th e substance of the allegation was that the stock and price registers were not duly maintained by the petitioner. Moreover, stock register and physical stock did not tally. Petitioner was therefore charged with violation of Orders 14 an d 18 of the 1982 Order. Petitioner submitted his reply on 29.3.2013 not only d enying such allegations but also explaining the discrepancy in respect of at ta. The reply of the petitioner was received on 1.4.2013. However, by the impug ned order dated 4.4.2013, the licence of the petitioner was cancelled on the gro und that there were violations of Orders 14 and 18 by the petitioner. It was f urther stated that the record of the stock as reflected in the stock book was f ound inconsistent with the stock of commodities. Record further reveals that ins pection report dated 19.3.2013 was submitted by respondent No.4 to respondent No .3 which showed some discrepancies in the physical stock and the stock register of certain commodities, such as, atta, levy sugar etc. On the basis of said inspection report, the show cause notice was issued to the petitioner. 15. Cancellation of licence is a drastic power directly affecting the life and livelihood of the licensee. Unless the violation of statutory provisions by the licensee are serious and proved in course of enquiry, such a course of act ion should not be resorted to hastily. Order 15(2) of the 1982 Order clearly m andates that no order of cancellation shall be made without giving the license e reasonable opportunity of hearing but also provides that during such proceedin gs the Licensing Authority can suspend the licence for a period not exceeding 90 days. In other words, what the said provision visualizes is a comprehensive enquiry into the allegations brought against the licensee before resorting to the drastic power of cancellation, during which period the licence can also be suspended. In the present case, it is seen that the entire case against the petitio 16. ner was built up on the basis of the inspection report submitted by respondent No.4 to respondent No.3 dated 19.3.2013. The record does not indicate that copy of such report was furnished to the petitioner. Unless the licensee is confront ed with the allegation as appearing in the inspection report, an effective reply may not be possible. However, even in the absence of a copy of such report, th e petitioner had submitted his reply. But neither the record nor the impugned or der discloses any consideration of the said reply. Non-consideration of such reply has vitiated the impugned order dated 4.4.2013. Impugned order is also ve ry vague and devoid of any particulars save and except making a general statemen t of violation of the two mentioned provisions of the 1982 Order. 17. Thus, in the facts and circumstances of the case, the Court is of the v iew that impugned order of cancellation of licence is in violation of the princ iples of natural justice and fair play. Accordingly, the same cannot be sustaine d and is hereby set aside and quashed. Respondent No.4 shall now take a decision within 15 days from today on renewal of the fair price shop licence of the pe titioner. 18. . Record produced by Mr. B.J. Ghosh, learned Govt. Advocate is returned back. Writ petition is allowed. However, there shall be no order as to cost