Judgment ( 1. ) PETITIONER has challenged the order Annexure P-9 dated 2-6-2004 issued by respondent No. 3 by which respondent No. 4 has been directed to take steps for cancellation of Mandi licence of petitioner under Section 33 of M. P. Krishi Upaj Mandi Adhiniyam, 1972 (hereinafter referred to as act for short) and to file a criminal case against the firm under Section 420, IPC by lodging First Information Report to police. ( 2. ) THE petitioner has sought following reliefs in this petition : " (i) Certiorari, for quashing the order dated 2-6-2004, Annexure P-9 passed by the respondent-Managing Director, M. P. State Agriculture Marketing Board; (ii) Mandamus, restraining the respondent-Krishi Upaj Mandi Samiti, Banapura Tehsil Seoni Malwa District Hoshangabad from making any complaint to the police against the petitioner; (iii) Any other order/orders that this Honble Court deems fit and proper in the facts and circumstances of the case may also kindly be passed. " ( 3. ) THE facts of the case in short necessary for decision are as under: (A) That the petitioner M/s Gangabishan Dwarikadas Agrawal is a registered partnership firm of which Dwarikadas Agrawal and Jeewan Ram Agrawal are the partners. The petitioner is carrying on its business of sale and purchase of grains and is a licence holder of Krishi Upaj Mandi Samiti, Tehsil Seoni-Malwa, District Hoshangabad. The petitioners agent Poonam Chand Agrawal purchased wheat from one Kamlesh Lowanshi on 22-5-2004. The said wheat was purchased in open auction @ Rs. 648/- per quintal. The wheat was in 36 gunny bags. The Krishi Upaj Mandi Samiti after weighment issued pay slip of 36 gunny bags of wheat. The petitioner firm made payment to Kamlesh Lowanshi as per weighment slip. Thereafter Kamlesh Lowanshi made a complaint that the wheat which was initially weighed be re-weighed. On the request of Kamlesh Lowanshi the Krishi Upaj Mandi re-weighed 36 gunny Bags and some difference was found. Thereafter the Krishi Upaj Mandi issued a show-cause notice to the weighman, who was authorised to weight the bags in Krishi Upaj Mandi, as to why action against him should not be taken for not weighing the wheat correctly. Subsequently the Krishi Upaj Mandi cancelled his licence after show-cause notice. (B) A show-cause notice was issued to the petitioner also why action under Section 33 of the Act be not taken against him. Subsequently the Krishi Upaj Mandi cancelled his licence after show-cause notice. (B) A show-cause notice was issued to the petitioner also why action under Section 33 of the Act be not taken against him. The petitioner submitted its reply that the petitioner was not at all responsible for wrong weighment of wheat as the weigh-man is authorised and licence holder of Krishi Upaj Mandi. As per the weighment slip the petitioner had paid the amount to the seller. Thereafter respondent No. 4 suspended the trading licence of petitioner for seven days by order dated 1-7-2004. The petitioner firm did not challenge the aforesaid order as the licence was restored after seven days. (C) The matter came into the notice of respondent No. 3 who issued an order Annexure P-9 dated 2-6-2004 to respondent No. 4 for initiating action under Section 33 (1) (B) read with Section 33 (2) of the Act against the petitioner firm and to lodge First Information Report against the petitioner under Section 420, IPC. It appears that the respondent No. 4 did not agree with the aforesaid directions and sought clarification from respondent Managing Director raising certain querries, that under what law complaint could be lodged with police against the petitioner. On receiving the aforesaid communication the Managing Director issued show-cause notice to the Chairman of Krishi Upaj Mandi as to why he should not be removed under Section 55 of the Act. Thereafter this petition was filed challenging the aforesaid order. ( 4. ) THE contention of petitioner is two fold : (i) That the petitioner was not at all responsible in respect of weighment of wheat as it was duly weighed by licencee/authorised person of respondent No. 4. He was independent person and petitioner has no control over him in respect of weighment. (ii) The respondent No. 3 has not issued any show-cause notice against the petitioner before taking such punitive action. The respondent No. 3 ought to have afforded adequate opportunity to the petitioner of hearing, before passing order Annexure P-9. ( 5. ) ON notice respondent No. 3 caused appearance but no reply has been filed by respondent No. 3 in this case. The respondent No. 4 filed the reply in this case and raised objection that the order is appealable under Section 34 of the Act; apart from this respondent No. 4 is complying with the direction of respondent No. 3. ) ON notice respondent No. 3 caused appearance but no reply has been filed by respondent No. 3 in this case. The respondent No. 4 filed the reply in this case and raised objection that the order is appealable under Section 34 of the Act; apart from this respondent No. 4 is complying with the direction of respondent No. 3. There was difference in between two weighment of wheat and petitioners agent Pooran Chand Agrawal was hand-in-glove with Santosh, who weighed the wheat. ( 6. ) LEARNED Counsel for respondent Nos. 2 and 3 supported the order that in fact the petitioner is beneficiary of aforesaid weighment and the agent of petitioner managed incorrect weighment of wheat. The respondent No. 3 has rightly passed the order for cancellation of licence and for lodging First Information Report against the petitioner. Apart from this the writ petition on behalf of firm is not maintainable. The partners ought to have filed petition on behalf of firm. It is prayed that this petition be dismissed. ( 7. ) TO consider rival contention of the parties firstly the objection raised by respondent Nos. 2 and 3 about maintainability of this petition on behalf of firm may be seen. The contention of respondent Nos. 2 and 3 is that the firm is not a citizen, firm has no fundamental right and in fact the partners are the affected persons, who ought to have filed the writ petition on their behalf. The prosecution will be against the partners. In these circumstances the petition is not maintainable. Reliance is placed by respondent Nos. 2 and 3 to the Apex Court judgments in the case of The Commissioner of Income Tax, West Bengal v. A. W. Figgis and Co. and Ors. , AIR1953 SC 455 , [1953 ]24 ITR405 (SC ), [1954 ]1 SCR171 , Commissioner of Income-tax, Madras v. R. M. Chidambaram Pillai , AIR1977 SC 489 , [1977 ]10 ITR292 (SC ), (1977 )1 SCC431a , [1977 ]2 SCR111 and Munshi Ram and Ors. v. Municipal Committee, Chheharta ( 8. ) LEARNED Counsel for petitioner contended that in fact the licensee is firm and firms licence has been directed to be cancelled. The firm is legal entity. The firm is a registered partnership firm and entitled to file this petition in the name of firm. v. Municipal Committee, Chheharta ( 8. ) LEARNED Counsel for petitioner contended that in fact the licensee is firm and firms licence has been directed to be cancelled. The firm is legal entity. The firm is a registered partnership firm and entitled to file this petition in the name of firm. The firm is represented by partners, it shall be deemed that in fact the partners have filed this petition on behalf of firm. ( 9. ) TO appreciate the rival contention of parties firstly the law relied upon by the respondents may be seen. The Apex Court in A. W. Figgis and Co. and Ors. , in Para 7 held thus : "7. It is true that under the law of partnership a firm has no legal existence apart from its partners and it is merely a compendious name to describe its partners but it is also equally true that under that law there is no dissolution of the firm by the mere incoming or outgoing of partners. A partner can retire with the consent of the other partners and a person can be introduced in the partnership by the consent of the other partners. The reconstituted firm can carry on its business in the same firms name till dissolution. The law with respect to retiring partners as enacted in the Partnership Act is to a certain extent a compromise between the strict doctrine of English common Law which refuses to see anything in the firm but a collective name of individuals carrying on business in partnership and the merchantile uses which recognises the firm as a distinct person or quasi corporation. But under the Income-tax Act the position is somewhat different. A firm can be charged as a distinct assemble entity as distinct from its partners who can also be assessed individually. Section 3 which is the charging section is in these terms : "where any Central Act enacts that Income-tax shall be charged for any year at any rates. . . . A firm can be charged as a distinct assemble entity as distinct from its partners who can also be assessed individually. Section 3 which is the charging section is in these terms : "where any Central Act enacts that Income-tax shall be charged for any year at any rates. . . . tax at that rate or those rates shall be charged for that year in accordance with, and subject to the provisions of, this Act in respect of the total income of the previous year of every individual, Hindu Undivided Family company and local authority and of every firm and other association of persons or the partners of the firm or the members of the association individually". The partners of the firm are distinct assessable entities, while the firm as such is a separate and distinct unit for purposes of assessment. Sections 26, 48 and 55 of the Act fully bear out this position. These provisions of the Act go to show that the technical view of the nature of a partnership under English Law or Indian Law can not be taken in applying the law of Income-tax. The true question to decide is one of identity of the unit assessed under the Income-tax. The true question to decide is one of identity of the unit assessed under the Income-tax Act, 1918 which paid double tax in the year 1939, with the unit to whose business the private limited company succeeded in the year 1947. We have no doubt that the Tribunal and the High Court were right in holding that in spite of the mere changes in the constitution of the firm, the business of the firm as originally constituted continued as tea brokers right from its inception till the time it was succeeded by the limited company and that it was the same unit although, carrying on the same business, at the same place and there was no cesser of that business or any change in the unit. Reference was made by Mr. Daphtary to the partnership deed drawn up in 1945. It was argued that a different firm was then constituted. The High Court refused to look into this document as it had not been relied upon before the Tribunal and no reference had been specifically made to it in the order of Income-tax Officer or the Assistant Commissioner. Daphtary to the partnership deed drawn up in 1945. It was argued that a different firm was then constituted. The High Court refused to look into this document as it had not been relied upon before the Tribunal and no reference had been specifically made to it in the order of Income-tax Officer or the Assistant Commissioner. The Tribunal in spite of this document took the view that under the Partnership Act a firm could be carried on even if there was a change in its constitution. This document is silent on the question as to what happened to the assets and liabilities of the firm that was constituted under the deed of 1939. To all intents and purposes the firm as reconstituted was not a different unit but it remained the same unit in spite of the change in its constitution. " In R. M. Chidambaram Pillai (supra) the question, involved in this case, was not before the Apex Court in the aforesaid case. In Munshi Ram and Ors. (supra) the Apex Court considering the definition of person under Section 61 (i) (b) of the Punjab Municipal Act held in Paras 18 and 19 thus : "18. partnership as defined in Section 4 of the Indian Partnership Act, 1932, is the relation between persons who have agreed to share the profits of a business carried on by all or any of them for the benefit of all. The section further makes it clear that a firm or partnership is not a legal entity separate and distinct from the partners. Firm is only a compendious description of the individuals who compose the firm. The crucial words in the definition of partnership are those that have been underlined. They hold the key to the question posed above. They show that the business is carried on by all or any of the partners. In the instant case, admittedly, all the plaintiff-appellants are carrying on the business in partnership. All the six partners are sharing the profits and losses. All the partners are jointly and severally responsible for the liabilities incurred or obligations incurred in the course of the business. Each partner is considered an agent of the other. In the instant case, admittedly, all the plaintiff-appellants are carrying on the business in partnership. All the six partners are sharing the profits and losses. All the partners are jointly and severally responsible for the liabilities incurred or obligations incurred in the course of the business. Each partner is considered an agent of the other. This being the position, it is not possible to hold that each of the six partners is not carrying on a trade or calling within the purview of Clause (b) of Section 61 (1) of the Municipal Act. At the most, it can be said that each of these six persons is severally as well as collectively carrying on a trade in the Municipality. There is nothing in the language of Section 61 or the scheme of the Municipal Act which warrants the construction that persons who are carrying on a trade in association or partnership with each other can not be individually taxed under Clause (b) of Section 61 (1 ). On the contrary, definite indication is available in the language and the scheme of this statute that such partners can be taxed as persons in their individual capacity. As noticed already, Clause (b) makes it clear in no uncertain terms that this is a tax on persons. Its incidence falls on individuals, who belong to a class practising any profession or art; or carrying on a trade or calling in the municipality. To hold that persons who are collectively carrying on a trade in the municipality can not be taxed individually would be to read into the statute words which are not there. There are no words in Clause (b) or elsewhere in the statute which, expressly or by necessary implication, exclude or exempt persons carrying on a trade collectively in the municipality from being taxed as individuals. To attract liability to a tax under this clause, it is sufficient that the person concerned is carrying on a trade in the municipality, irrespective of whether such trade is being carried on by him individually or in partnership. Thus, both the conditions necessary for levying a tax under Clause (b) of Sub-section (1) of Section 61 of the Municipal Act existed in this case. The appellants are "persons" and they are carrying on a trade in Chheharta Municipality. 19. Thus, both the conditions necessary for levying a tax under Clause (b) of Sub-section (1) of Section 61 of the Municipal Act existed in this case. The appellants are "persons" and they are carrying on a trade in Chheharta Municipality. 19. In the view we take, we do not think it necessary to go further into the question whether the definition of person given in Section 2 (40) of the Punjab General Clauses Act, can be imported into the statute under consideration, so as to include a contractual firm, also, within the purview of expression persons used in Clause (b) of Section 61 (1 ). Indeed, the entire effort to import the definition of person given in the General Clauses Act, into Section 61 (1) (b) of the Municipal Act, is directed to find a foundation for the argument, that the construction adopted by the High Court could lead to double taxation and even unconstitutional results. But in the instant case, nothing of this kind has happened. The firm has not been assessed. No question of double taxation or exceeding the constitutional ceiling of Rs. 250/-fixed by Article 276 (2) of the Constitution, arises on the facts of present case. The arguments advanced on behalf of the appellant on this aspect of the matter are merely hypothetical and speculative. " Identical question arose before the Apex Court in Andhra Industrial Works v. Chief Controller of Imports and Ors. , AIR 1974 SC 1539 , (1974) 2 SCC 348 , [1975] 1 SCR 321, 1974 (6) UJ 361 (SC) in which four Judges Bench of Apex Court considering the question held thus : "6. At the outset Mr. Prasad appearing on behalf of the respondents, has raised these objections : (1) Article 19 (1) (g) on which the petitioners stake their claim can be availed of only by a citizen of India; the writ petition filed by the firm is therefore not maintainable; (2) Since the petitioners had no fundamental right to the grant of licences in question and the law in pursuance of which respondent No. 3 passed the impugned order, was intravires, the procedural irregularity or error if any, committed by the respondent in the exercise of his jurisdiction, not having resulted in violation of or threat to any fundamental right of the petitioners, can not be impeached by way of a petition under Article 32 of the Constitution. Reference has been made to Smt. Ujjam Bai v. State of U. P. , (1963) 1 SCR 778 : ( AIR 1962 SC 1621 ); (3) No mandamus or other relief as prayed for by the petitioners, can be granted because the petitioners had no specific legal right to the licences, nor was the respondent under a corresponding legal obligation to grant the same; (4) in any case, no import licences for the year 1969-70 in respect of the materials in question can now be granted because of the restrictions subsequently imposed by Import Control Policy of the year 1972. 7. In reply, Mr. Chitle submits that the-respondents have not followed the mandatory procedure prescribed in the Import Trade Control Hand Book, contravention of which entitles the petitioners to the issue of a writ of certiorari or any other appropriate order or direction from this Court. This contravention, it is added, has, ineffect, violated the fundamental rights of the petitioners under Articles 14 and 19 of the Constitution. 8. We find no merit in the preliminary objection that the writ petition on behalf of the "firm" is not maintainable. Since "firm" stands for all the partners, collectively, the petition is to be deemed to have been filed by all the partners who are citizens of India. We, therefore, negative this objection. " 9-A. The question has been well settled by the Apex Court in Andhra Industrial Works (supra ). The question raised in A. W. Figgis and Co. and Ors. , R. M. Chidambaram Pillai and Munshi Ram and Ors. (supra) was on different grounds. So far as maintainability of petition under the Act is concerned, it is true that under Article 19 (1) (g) writ jurisdiction can be invoked by a citizen but a writ petition filed by a firm is also maintainable as the firm stands for all the partners collectively and the petition is deemed to be filed by all the partners who are citizens of India. The licence is in the name of firm. The respondent No. 3 has issued direction to respondent No. 4 to cancel the licence of firm. The partners are affected by the aforesaid order. The firm is represented by all the partners of the firm collectively. The licence is in the name of firm. The respondent No. 3 has issued direction to respondent No. 4 to cancel the licence of firm. The partners are affected by the aforesaid order. The firm is represented by all the partners of the firm collectively. In these circumstances the writ petition filed in the name of the firm shall be deemed to have been filed by all the partners who are citizens of India. In these circumstances the objection raised by respondent Nos. 2 and 3 has no substance, and I negative this objection. ( 10. ) NOW the second contention about merits of the case may be seen. By order Annexure P-9 the respondent No. 3 has issued certain directions for initiation of action against the petitioner for cancellation of licence and for lodging First Information Report to the police. It is not in dispute that before issuance of order Annexure P-9 respondent No. 3 had not issued any show-cause notice to the petitioner nor opportunity of hearing was provided to the petitioner. The respondent No. 4 has no option except to comply with the directions issued by respondent No. 3. Even if the action is to be taken by respondent No. 4 then respondent No. 4 has no discretion to afford an opportunity of hearing to the petitioner. In fact the respondent No. 3 ought to have afforded an opportunity of hearing to the petitioner before issuance of order Annexure P-9. The order Annexure P-9 is punitive in nature. The petitioner ought to have been heard before issuance of such order. Contention of petitioner has merit that the wheat was weighed by agent of respondent No. 4 who was an authorised person by respondent. The petitioner or his agent if has joined hands with the person who weighed the wheat then only said person is liable for the aforesaid act. The criminal liability is in persona. All the partners of the firm can not be held liable merely the agent colluded with the person who weighed the wheat. Even if there are some allegations on the partners of the petitioner, then they requires an opportunity of hearing in this regard by respondent No. 3. The licence of petitioner was initially suspended by respondent No. 4 and petitioner has already suffered one punishment before taking action by respondent No. 3. All these facts should have been considered. Even if there are some allegations on the partners of the petitioner, then they requires an opportunity of hearing in this regard by respondent No. 3. The licence of petitioner was initially suspended by respondent No. 4 and petitioner has already suffered one punishment before taking action by respondent No. 3. All these facts should have been considered. In these circumstances issuance of order Annexure P-9 without affording any opportunity of hearing to the petitioner is in violation of principles of natural justice and deserves to be quashed. ( 11. ) IN the result this petition is allowed, the order Annexure P-9 by which directions are issued to respondent No. 4 to take action under Section 33 (2) of the Act against the petitioner and lodge First Information Report under Section 420, IPC at police station are hereby quashed. Liberty is granted to respondent No. 3 to issue fresh show-cause notice to the petitioner or its partners and after hearing to pass fresh order, in accordance with law. No order as to costs.