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2006 DIGILAW 930 (GAU)

Mahabhairab Samabai Sammittee v. State of Assam

2006-09-28

BIPLAB KUMAR SHARMA

body2006
JUDGMENT B.K. Sharma, J. 1. By means of this writ petition, the Petitioners have questioned he legality and validity of the order 17.06.2006 passed by the Deputy Commissioner, Sonitpur, Tezpur placing the Petitioners' Society under suspension as per the provisions of Clause 15(1) and (2) of the Assam Public Distribution of Articles Order, 1982. The Petitioners have also assailed the consequential order dated 20.07.2006 by which the rice bags seized from the Petitioners' Society were directed to be disposed of through public distribution system at Government fixed price in presence of the Food and Civil Supplies officials to the beneficiaries. 2. The occasion for placing the Petitioners' Society under suspension arose when the rice bags lifted by it for distribution to the beneficiaries were stored in a private godown instead of the official godown. The seizure was made on 08.06.2006 when the particular truck had gone to the private godown for unloading the rice bags. The plea taken by the Petitioners is that the decision to store the rice bags in private godowns was taken by a resolution of the society adopted on 03.06.2006. Be it stated here that altogether 306 rice bags were unloaded in the godown from the truck. 3. After the aforesaid seizure of the rice bags, the Deputy Commissioner, Sonitpur issued a show cause notice to the Secretary of the co-operative society to explain the circumstances leading to diversion of rice meant for the beneficiaries living under below poverty line. In the notice, it was indicated that the society has violated Clause 6(4)(1) of the aforesaid Order of 1982. It was also indicated that there was violation of the conditions of the license granted in favour of the society. 4. In response to the show cause notice, the Petitioners' Society submitted its reply taking the plea that out of 7 trucks carrying rice bags, 6 trucks could reach the nominated godown of the society but due to bad road condition, the remaining truck could not reach the destination. It was further contended that the truck met with a mechanical failure and after repairing the same at about 8.30pm it was proceeding towards the destination, but due to the rain and bad road condition, it had not her alternative than to proceed towards the private godown of one Lakhanlal Sahu for storing the rice bags temporarily. It was further contended that the truck met with a mechanical failure and after repairing the same at about 8.30pm it was proceeding towards the destination, but due to the rain and bad road condition, it had not her alternative than to proceed towards the private godown of one Lakhanlal Sahu for storing the rice bags temporarily. In the show cause reply, it was further stated that when the unloading of the rice bags was almost complete, the Officer-in-Charge, Borghat Outpost appeared in the scene and seized the rice bags stored in the godown along with the truck. 5. After the aforesaid show cause reply furnished by the Petitioners' Society, the Annexure-4 impugned order dated 17.06.2006 has been passed suspending the license of the Petitioners' Society. By the consequential order dated 20.07.2006 (Annexure-5 to the writ petition), the Officer-in-Charge of the Output was requested to dispose of the rice through public distribution system about which a mention has been made above. 6. Mrs. N. Saikia, learned Counsel for the Petitioners, during the course of her argument, placed reliance on the purported resolution of the society adopted on 03.06.2006 for storing the rice bags in private godowns. According to her, such resolution adopted by the society was also approved by the Assistant Registrar of Co-operative Societies, Tezpur by his endorsement dated 09.06.2006 made on the body of the photo copy of the resolution dated 03.06.2006. She further contended that as there was sudden necessity to store the rice bags in private godowns, no prior intimation could be given to the authority, as per the requirement of the terms and conditions of the license. According to her, there being no malafide intention on the part of the Petitioners' Society in storing the rice bags in a private godown, the authority ought not have suspended the license. 7. Countering the above argument made by the learned Counsel for the Petitioners, Ms. R. Chakraborty, learned State Counsel, referring to the counter-affidavit filed by the Respondents, submitted that the stand taken in the writ petition and in the show cause reply is contradictory. 7. Countering the above argument made by the learned Counsel for the Petitioners, Ms. R. Chakraborty, learned State Counsel, referring to the counter-affidavit filed by the Respondents, submitted that the stand taken in the writ petition and in the show cause reply is contradictory. She submitted that if the resolution was adopted on 03.06.2006 for storing the rice bags in a private godown, it is not understood as to why the Petitioners in their show cause reply took the plea of bad road condition and mechanical breakdown of the truck compelling the truck driver to store the rice bags in a private godown. She also submitted that there being an alternative remedy by way of preferring appeal against the impugned order, the writ Court, more particularly, when the disputed facts are involved, will be reluctant to interfere with the impugned order. 8. I have considered the submissions made by the learned Counsel for the parties and the materials on record. In the show cause notice, the seizure of the rice bags from a private godown at the time of unloading the rice bags from the truck in question and the public complaint were indicated. In response to the show cause notice, the Petitioners' Society submitted its reply taking the aforesaid plea of bad road condition and mechanical breakdown of the truck forcing them to store the rice bags in a private godown. The society in its show cause reply also referred to the purported resolution adopted on 03.06.2006 authorizing the Society to store the rice bags in a private godown. The incident had occurred on 08.06.2006 and according to the Petitioners, the recourse to store the rice bags in a private godown had to be taken in view of a sudden and emergent situation on that day. If that be so, it is not understood as to how such emergent and sudden situation could be visualized ahead of the incident on 03.06.2006 so as to adopt a resolution. 9. From the photo copy of the resolution dated 03.06.2006 produced by the learned Counsel for the Petitioners, it appears that there is an endorsement dated 09.06.2006 made by the Assistant Registrar of Cooperative Societies, Tezpur. The endorsement is in original. By the said endorsement, the purported resolution was approved. 9. From the photo copy of the resolution dated 03.06.2006 produced by the learned Counsel for the Petitioners, it appears that there is an endorsement dated 09.06.2006 made by the Assistant Registrar of Cooperative Societies, Tezpur. The endorsement is in original. By the said endorsement, the purported resolution was approved. Such a course of action on the part of the Assistant Registrar of Cooperative Societies cannot be said to be as per the official procedure. Firstly, the copy of the resolution produced by the learned Counsel for the Petitioners is a photo copy of the same and thus, there could not have any such endorsement in original. Even otherwise also, if any approval was to be accorded, such approval could have been accorded only by way of issuance of a letter. The entire episode gives an impression that the story of adoption of the resolution on 03.06.2006 and the approval accorded by the Assistant Registrar of Co-operative Societies by his endorsement dated 09.06.2006 on the body of the photo copy of the resolution is an after-thought. 10. There is another aspect of the matter. As submitted by the learned State Counsel, the Assistant Registrar of Co-operative Societies is not the authority to approve such resolution. Further, as per the terms and conditions of the license granted in favour of the Petitioners Society, it is the licensing authority to whom intimation of storing the materials in a private godown is to be issued. The licensing authority is the Deputy Director, Food and Civil Supplies, Tezpur. Thus, on the face of it, there is violation of the terms and conditions of the license and public distribution system clauses of Assam Public Distribution of Articles Order, 1982. As per the requirement of the NOTE indicated in the license itself if the licensee intends to store the notified articles in place other than those specified in the license, he shall give intimation in writing to the Licensing Authority within a period of seventy two hours of actual storing of those articles therein. However, in the instant case, nothing has been shown to indicate that any such intimation was sent to the Licensing Authority. Thus, even if the endorsement of the Assistant Registrar of Co-operative Societies is taken on its face value, then also, the same is of no assistance to the case of the Petitioners. 11. However, in the instant case, nothing has been shown to indicate that any such intimation was sent to the Licensing Authority. Thus, even if the endorsement of the Assistant Registrar of Co-operative Societies is taken on its face value, then also, the same is of no assistance to the case of the Petitioners. 11. Apart from the above, as per the enquiry report of the Extra Assistant Commissioner, Tezpur submitted by his letter dated 09.06.2006, the purported resolution dated 03.06.2006 adopted by the Petitioner Society was also not submitted to the appropriate authority for approval. The resolution itself provided for seeking approval of the authority. The report was submitted on 09.06.2006 and till that time, the resolution was not approved by the competent authority since the same was not placed before it. However, as indicated above, prima facie, it appears that to cover up the lacuna, the Petitioners' Society obtained the endorsement of the Assistant Registrar of Co-operative Societies on 09.06.2006 according approval to the same but ironically, such approval was accorded on the photocopy of the resolution. The photo copy produced by the learned Counsel for the Petitioners is also not complete. It does not contain other pages. 12. In view of the above, no relief can be granted to the Petitioners. Further, as contended by the Respondents, there is provision for appeal in the Assam Public Distribution of Articles Order, 1982. As per Clause 29 of the Order, any person aggrieved by an order made by the authorities mentioned therein can prefer appeal to the higher authority. The license of the Petitioners' Society has been suspended invoking the provisions of Order 15(1) of the aforesaid Order. The authority is empowered to suspend the license if it is found that the licensee or his agent or servant or any other person acting on his behalf has contravened any of the terms and conditions of the license. The license is suspended to facilitate the follow up proceeding. 13. Apart from the fact that the Petitioners' Society will be entitled to put forward their case in the proceeding, as indicated above, there is also provision for appeal against the order of suspension. Thus, if the Petitioners are aggrieved by the order of suspension, it is open for them to prefer appeal before the appellate authority. 13. Apart from the fact that the Petitioners' Society will be entitled to put forward their case in the proceeding, as indicated above, there is also provision for appeal against the order of suspension. Thus, if the Petitioners are aggrieved by the order of suspension, it is open for them to prefer appeal before the appellate authority. In the event of preferring such appeal, the appellate authority shall consider and dispose of the same in accordance with law. It is also expected that the Respondents will also finalize the proceeding against the Petitioner as expeditiously as possible by giving all reasonable opportunities of being heard. 14. For the foregoing reasons and discussions, no relief can be granted to the Petitioners. However, it will be open for them to prefer departmental appeal against the order of suspension. It is also provided that the Respondents shall finalize the proceeding as expeditiously as possible. 15. Subject to the above liberty and observations, the writ petition is dismissed. There shall be no order as to costs. Petition dismissed