High Court · 2012

3. The S.D.O. (C) suspended the licence of the writ petitioner pending cons ideration of show-cause notice. Thereafter, vide order dated 10.8.2009, licence of the writ petitioner was restored except to the extent of 30 per cent of the q uota earmarked for street hawkers. Thus, the writ petitioner was allowed to dist ribute 70 per cent of the allotment under its licence. Aggrieved by the said ord er, the appellant Kerosene Oil Hawker Kalyan Samiti approached this Court under Article 226 of the Constitution but this Court relegated it to the remedy of ap peal vide order dated 14.9.2009. Accordingly, an appeal was filed which led to p assing of the impugned order by the Deputy Commissioner, as follows :- (cid:28) After hearing the argument and counter argument from the Ld. Counsel for the r espondent and appellant, and also on perusal of records, this Court is of the vi ew that M/s S.C.S.C., Lakhipur and M/s. S.C.S.C., Pailapool have failed to distr ibute the S.K. Oil nor only to the hawkers but also they have failed to distribu te this highly subsidized PDS item to the other consumers as well. In fact the s aid agent of IOC (MD) namely (1) M/s. S.C.S.C., Lakhipur and (2) M/s S.C. S.C., Pailapool have been accused repeatedly for violation of the A.P.D.A. Order and s uspension and tagging order served upon them within a span of one year twice dat ed 24/02/2008 and 24/03/2009. Further, on perusal of records, it is revealed tha t the present Sub-Divisional Officer (Civil) Lakhipur vide his order No.LFCS.2/2 009/2-A Dated 03/11/2009 has again placed M/s S.C.S.C., Lakhipur under suspensio n for alleged violation of A.P.D.A. Order and for non distribution and improper maintenance of accounts regarding distribution of S.K. Oil through P.D.S. The su spension order thus served upon M/s S.C.S.C. Lakhipur and M/s S.C.S.C. Pailapool establishes affect that these two agents of IOC (MD) for S.K. Oil, are incapabl e and incompetent to continue functioning as dealers of subsidized S.K. Oil mean t for P.D.S. In view of the facts and circumstances cited above the impugned order da ted 10/08/2009 passed by the S.D.O.(C) Lakhipur deserves interference and accord ingly the appeal is allowed and revocation of suspension order dated 10/08/2009 is hereby set aside. The Sub-Divisional Officer (Civil) Lakhipur being the Licen sing Authority will make necessary arrangement for fair distribution of S.K. Oil strictly as per the guidelines by making local arrangements as per the provisio n of law and submit compliance report to the undersigned within 27/11/2009. (cid:29) The writ petitioner challenged this order before this Court by submittin 4. g that the appeal was not competent and the petitioner was not given due opportu nity to contest the same. Learned Single Judge upheld the stand of the writ petitioner and held th 5. at the Deputy Commissioner had not given due opportunity to the writ petitioner to present his case while passing the impugned order. It was observed :- (cid:28)9. That apart, the order dated 18.11.2009 was passed by the learned Deputy Commissioner in an appeal proceeding filed under the provisions of the C ontrol Order. The Deputy Commissioner was exercising a quasi judicial power vest ed in him by the Control Order. The exercise of any judicial or quasi judicial p ower comprehends grant of reasonable opportunity to a person who is likely to be affected by such order as may be passed in the proceedings in question. This is a requirement spelt out by the elementary principles of natural justice, regard less of what is contained in Clause 15(2) of the Control Order which may not str ictly apply to the present case. It has already been found from a perusal of the records that the notice of the appeal filed by the Kerosene Oil Hawker Kalyan S amiti was sent to the petitioner on 13.11.2009 fixing the appeal for hearing on 16.11.2009. While the efforts made by the Deputy Commissioner to expeditiously d ispose of the appeal has to be appreciated, at the same time, such efforts canno t be allowed to come in conflict with the requirements of reasonable opportunity . The petitioner filed his objections in the appeal on 16.11.2009 and sought cop ies of the order of the Court passed in WP(C) No. 3558/2009 and the writ petitio n. The request for copies of the said order and the writ petition cannot be said to be unjustified as the appeal itself was filed pursuant to the order dated 14 .9.2009 passed in WP(C) No. 3558/2009. The learned Deputy Commissioner did not s pecifically address himself to the aforesaid request of the petitioner and witho ut recording as to why the said request is in any way untenable or unreasonable, proceeded to hear the appeal. Such a course of action on the part of a quasi ju dicial authority cannot have the Court’s approval.

10. A reading of the order dated 18.11.2009 passed by the learned De puty Commissioner also indicates that though the Deputy Commissioner was require d to consider the validity of the order dated 10.8.2009 passed by the Sub-Divisi onal Officer in the appeal filed before him(assuming the appeal to be maintainab le), in determining the validity of the said order subsequent facts and events including another order dated 3.11.2009 by which the licence of the petitioner w as once again suspended, were taken into account. Public complaints received wit h regard to the manner of functioning of the petitioner after the licence was re stored in a limited manner by the order dated 10.8.2009 of the Sub-Divisional Of ficer were also taken into account by the learned Deputy Commissioner while rend ering the order dated 18.11.2009. Cognizance of such subsequent facts and events could not have been legitimately taken by the learned Deputy Commissioner to ad judge the validity of an order passed earlier to the occurrence of such facts an d events.

11. Taking into account what is stated above, the Court is of the vi ew that the order dated 18.11.2009 passed by the learned Deputy Commissioner dis closes apparent legal infirmities which would call for the Court’s interference under Article 226 of the Constitution. The said order, therefore, is set aside. (cid:29)

6. We have heard learned counsel for the parties.

7. Learned counsel for the appellants submitted that in case adequate oppor tunity had not been given to the writ petitioner, the Deputy Commissioner could have been required to pass a fresh order after giving of opportunity instead of quashing the said order without permitting a fresh order.

8. Learned counsel for the writ petitioner has not been able to show how th e Deputy Commissioner could be debarred from considering the matter after giving due opportunity. Such a course ought to be followed in view of law laid down by the Hon’ble Supreme Court in Managing Director, ECIL, Hyderabad and ors. B. Kar unakar and others, (1993) 4 SCC 727.

9. Accordingly, we allow this appeal to the extent of directing that the De puty Commissioner may go into the matter afresh and pass appropriate order after giving due opportunity of being heard to the parties. The parties may appear before the Deputy Commissioner for further procee dings on 20th December, 2012.