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2010 DIGILAW 841 (MP)

Radheshyam S/o Ramlal v. Union of India

2010-08-18

S.L.KOCHAR, S.R.WAGHMARE

body2010
JUDGMENT : S.R. Waghmare, J. These are a bunch of six writ appeals filed under section 2 of the Madhya Pradesh Uchha Nyayalaya (Khand Peeth Ko Appeal) Adhiniyam, 2005 filed by the appellants assailing order dated 1-4-2010 passed by Hon'ble Single Judge in Writ Petition No. 1873/2010 and others dismissing the petitions of the appellants. The order passed in this petition shall govern all the writ appeals. A copy of this order be maintained in other writ appeals. 2. The brief facts of lis are that the appellants had filed writ petitions before this Court challenging three orders: order dated 5-1-2010 passed by the Deputy Narcotics Commissioner, Central Bureau of Narcotics, Gwalior, order dated 10-2-2010 passed by the Deputy Narcotics Commissioner, Central Bureau of Narcotics, Mandsaur and order dated 17-2-2010 passed by District Opium Officer, Central Bureau of Narcotics, Mandsaur cancelling the licence of the appellants as well as upholding the cancellation to cultivate the opium crop for the year October, 2009- September, 2010. Hence the appellants filed these writ appeals before this Court alleging that the petitioners were granted licence under the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as the Act for brevity) by the District Narcotic Officer of the Central Bureau of Narcotic for the cultivation of the opium and the poppy straw for the crop year 2009-2010 and despite the fact that the licences were already issued by the respondent department. 3. The Counsel for the appellants petitioners contended that the respondent/department alleged that the licencees did not fulfil the requirements of the opium policies and were not eligible for grant of licences under the General Conditions relating to grant of licence notified by the Central Bureau for the crop year 2009-2010, the Competent Authority issued show cause notice to the ineligible cultivators as to why their licences should not be cancelled. After considering the reply, the licences were cancelled and the Appellate Authority under Rule 28 of the Rules also dismissed the appeals filed by the licencees and being aggrieved by the order of cancellation of licences in this light, the writ petitions were filed. 4. After considering the reply, the licences were cancelled and the Appellate Authority under Rule 28 of the Rules also dismissed the appeals filed by the licencees and being aggrieved by the order of cancellation of licences in this light, the writ petitions were filed. 4. Counsel for the appellants has vehemently argued that the impugned orders passed by the respondent Narcotic department was grossly in violation of the principles of natural justice and the show cause notice as well as the cancellation of the licence by the appellate authority was apparently illegal since the show cause notice indicates violation of condition 2(v) of the General Conditions for grant of licence, whereas the licences were cancelled for violation of 2(i) to 2(ix) of the General Conditions. Moreover it was also in fact stressed by the Counsel for the appellants that the respondents on their own volition had declared the petitioners appellants to be eligible for grant of licence for the growth of opium crop year 2009-2010 and now had themselves turned around and cancelled the licence of the petitioners for growing the opium crop when the crop was ready for lancing and cutting. The action of cancellation was therefore, hit by the principle of Promissory Estoppel and the respondents were estopped for cancelling the licence. Moreover, counsel for the appellants has also stated that the Hon'ble Single Judge had earlier granted the stay in the matter and directed that the respondents shall permit lancing of the opium capsule, the latex that oozes out of the capsules shall either be collected by the petitioner on daily basis and the weight of the said opium shall be recorded in PW Register maintained by the Village Lambardar. 5. This order was modified by the Division Bench of this Court on 3-3-2010 on appeal by the respondent department and the stay was vacated/modified on the ground that lancing could not be permitted to the petitioner since the cultivation or growth of opium crop would be illegal and that would decide the rights of the parties finally. Consequently counsel has stated that the learned Single Judge has dismissed the petitions and the dismissal was contrary to establish the principles and provisions of law. Consequently counsel has stated that the learned Single Judge has dismissed the petitions and the dismissal was contrary to establish the principles and provisions of law. Counsel has further stated that the learned Single Judge has taken into account the problems raised by the international convention regarding illicit growth of opium crop, which was totally uncalled for under the circumstances and the learned Hon'ble Judge had failed to consider the necessity of duly issued licences for its cultivation. Counsel has stated that the impugned judgment be set aside as it was violative of General Conditions for grant of licence. 6. At this juncture, Counsel for the appellants although drew attention of this Court to the fact that the Central Government issued an office memorandum on 19-2-2010 for consideration of grant of ex-gratia amount to the petitioners depending upon the age of the crop as on the date of the order and the area in which cultivation has been undertaken and learned Single Judge has also observed that if such compensation was granted by the Central Government and if the petitioners were aggrieved by the compensation they were granted, the liberty to take recourse to the provisions of law. 7. Counsel for the appellants urged that not a single penny has been paid to the present petitioners/appellants, whereas a lot of money had already been expended by them towards irrigation, seeds and growth of opium since the petitioners were already granted licences earlier, some of them had even availed of large amount of loans for the cultivation. 8. Counsel for the respondent/department, on the other hand, has fully supported the impugned judgment and has stated that the respondent/department had filed reply to the petitions and categorically stated that the petitioners were not eligible for grant of licences under any of the clause of General Conditions notified by the Central Government and had been granted licence illegally. This had been maJe clear in the preliminary audit of all the cases which had been conducted on 11-11-2009 to 24-11-2009 and the appellants had been properly issued show cause notice for cancellation of their licences as they were not found to be fulfilling the eligibility conditions for grant of licence. Rule 11(3) of the Rules mandates for destruction of the standing crop, if the licence is cancelled. And this was also in conformity with the provisions of law. 9. Rule 11(3) of the Rules mandates for destruction of the standing crop, if the licence is cancelled. And this was also in conformity with the provisions of law. 9. Counsel for the respondents has further stated the cancellation of licence vas done in entire conformity of the requirements of Rule 11(1) of the Rules, ince option is given for issuance of show cause notice or the aggrieved persons o be heard in person; show cause notices have been duly issued. Moreover, the Central Government is well within its rights regarding permit, control and sgulate the cultivation, production and manufacture of opium and production of poppy straw. Rule 11(1) of the Rules framed under the Act empowers an officer higher in rank than the District Opium Officer to withhold the licence issued by the Competent Authority. Rule 11 mandates that reasonable opportunities should be given to show cause and Rule 11 (3) empowers the proper officer specified by the Narcotic Commissioner to destroy the standing crop of opium and poppy straw under his supervision, which has been cultivated under a licence, which is subsequently withheld or cancelled. 10. Counsel for the respondents has further stated that the eligibility criteria primarily regarding the 55 degree consistency in the year 2003-04 or subsequent years were not fulfilled by any of the petitioners. Besides they had not fulfilled the eligibility criteria under other clause of the General Conditions also. Hence, in view of the powers of cancellation under Rule 11 of the Rules, respondents had rightly cancelled the licences and the Appellate Authority had duly upheld the cancellation. Counsel prayed for dismissal of the writ appeals. 11. On considering above submissions, the records and the impugned judgment, we are of the firm opinion that the appeals needs to be dismissed since grant of licence and its subsequent cancellation, the respondents were well within the jurisdiction as under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the Narcotic Drugs and Psychotropic Substance Rules, 1985. 12. The contention of the Counsel for the appellants is that the General Conditions notified by the Central Government were unreasonable and their licences, which have been wrongly cancelled, have been considered by the Hon'ble Single Judge of this Court in quite detail. 12. The contention of the Counsel for the appellants is that the General Conditions notified by the Central Government were unreasonable and their licences, which have been wrongly cancelled, have been considered by the Hon'ble Single Judge of this Court in quite detail. Hon'ble Single Judge has also very aptly observed that it is not open for the Courts to interfere into the conditions of policy and it is in the domain and prerogative of the State to fix and to change its policies from time to time in changing circumstances. Similarly by relying (2004) 9 SCC 362 , N. D. Jayal and another vs. Union of India and others the Hon'ble Single Judge has very correctly held that the Court cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy, which the executive alone is entitled to formulate. It can only be examined with reference to the fact whether it violates the fundamental rights of the people or whether it is opposed to any statutory provisions or manifestly arbitrary. 13. On considering the grounds of the petition, we find that issuance of the licence has been provided under Rule 8 of the Rules and General Conditions duly notified by the Central Government and hence the General Conditions for grant of licence had the force of law and would govern the eligibility test for grant of licence and Rule 11(2) provides that either a show cause notice may be issued before passing the order of cancellation or an opportunity of hearing in person should be provided to the licencees. The respondent department had come to the conclusion that the licences were illegally granted, since the allottees were ineligible because they failed to meet the M.Q.Y. (Minimum Quantity Yield) as prescribed under the policy for the year 2008-2009. Besides there was also ineligibility on other grounds as enumerated in the reply filed by the respondents. Moreover, the learned Single Judge was also dissatisfied that the petitioners had failed to establish that under which of the eligibility conditions the petitioners were eligible for grant of licence. 14. Besides there was also ineligibility on other grounds as enumerated in the reply filed by the respondents. Moreover, the learned Single Judge was also dissatisfied that the petitioners had failed to establish that under which of the eligibility conditions the petitioners were eligible for grant of licence. 14. Considering the question of applicability of the principles of the Promissory Estoppel or that the respondents could not cancel the licence granted in favour of the petitioners, we find that the General Conditions notified by the Central Government have been framed under the powers conferred upon the Central Government under Rule 8 of the Rules. Rule 8 is made subject to the said General Conditions. 15. And hence the learned Single Judge, dismissed all the petitions by holding that: "in the absence of challenge to the validity of the said General Conditions which have got the force of law the petitioners cannot make any grievance if their licences have been cancelled by the competent authority on reaching to the conclusion that grant made in their favour is violative of the General Conditions. The petitioners, who were not fulfilling the eligibility criteria fixed in the said General Conditions, could have been granted licence and their licences were liable to be and have rightly been cancelled by the competent authority in exercise of powers conferred under Rule 11 of the Rules after following the procedure prescribed under the Rules. Similarly, order of destruction of crop is inevitable in view of provision contained in Rule 11(3) of the Rules." 16. Thus, we find that the judgment of the Hon'ble Single Judge is impeccable since there has been properly marshalling of the evidence and proper reliance has been placed on various judgments of the Apex Court. And more importantly since the General Conditions notified by the Central Government available under Rule 8 of the Rules conferred upon the powers of respondent/Authority to cancel the licence already granted by the Competent Authority, if it reaches a conclusion that the grant made in their favour is violative of the General Conditions and the eligibility criteria having not been fulfilled by the petitioners/appellants as already stated earlier, consequently we do not find any good ground for interference in the impugned judgment passed by the Hon'ble Single Judge; and no case for inference is made out. 17. 17. The principles of Promissory Estoppel against the State as pointed by the Counsel for the respondent/department is not attracted in the present case for the singular reason that the General Conditions for grant of licence have got force of law and the same alone would also govern the eligibility test for grant licence, if the petitioners have not fulfilled the basic eligibility criteria. Rule 11 of the Rules also empowers the Competent Authority to cancel the licence granted in contravention to the provisions of law, and in such cases the principles of Promissory Estoppel would not be available against the State or its instrumentalities. More markedly the Government has not resiled from its promise as is being alleged, the public interest would be prejudiced if the Government is required to allow the petitioners/appellants to cultivate the opium in contravention to the General Conditions, which would be contrary and crucial to good governance and public policy. Hence, under these circumstances, the appeals are hereby dismissed as being devoid of merit. 18. Before parting with the judgment, we find that references were made by the Counsel for the respondents as well as in the impugned judgment that the Central Government has issued an office memorandum dated 19-2-2010 for consideration for grant of ex-gratia amount to the petitioners, if such a proposal has been put forth and the petitioners/appellants are eligible for the same then the respondents are directed to decide the same as expeditiously as possible preferably within a period of six months from the date of this judgment. 19. Original judgment be retained in Writ Appeal No. 151/2010 and its copy be placed in the record of all other five writ appeals. Appeals dismissed.