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2013 DIGILAW 794 (GAU)

Santanu Medhi v. State of Assam & Ors.

2013-11-11

UJJAL BHUYAN

body2013
Ujjal Bhutan, J -- 1. This petition under Article 226 of the Constitution of India seeks quashing of order dated 4.4.2013 issued by the Sub Divisional Officer (Civil), Biswanath Chariali cancelling the fair price shop licence of the petitioner. Petitioner further seeks a direction to the respondents to allow him to operate his fair price shop as earlier. 2. Case of the petitioner is that he was running a fair price shop at Bamgaon, Biswanath Chariali under Licence No.BFS-12/98/FP/27. The fair price shop run 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 in conformity with the legal requirements, maintaining cordial relation with his consumers. 4. On 13.3.2013, Sub Divisional Officer (Civil), Biswanath Chariali (Respondent No.3) alongwith some officials of Food and Civil Supplies Department, including respondent No.4, made a sudden visit to the fair price shop of the petitioner while he was not present. However, on receipt of information about the aforesaid 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 respondent No.3 alleging discrepancies between physical stock and book entries. Petitioner 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 provisions of Assam Public Distribution of Articles Order, 1982. Responding to the said show cause notice, petitioner submitted his detailed reply dated 29.3.2013 denying any such discrepancy or misappropriation of essential commodities. Regarding discrepancy in atta (flour), he stated that because of poor quality, consumers 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. 6. In the meanwhile, on the very next day of issuing show cause notice i.e., on 26.3.2013, respondent No. 4 lodged first information before Biswanath Chariali Police Station alleging that there was reason to believe that petitioner had misappropriated PDS commodities. Police authorities were requested to take necessary steps as per law. 6. In the meanwhile, on the very next day of issuing show cause notice i.e., on 26.3.2013, respondent No. 4 lodged first information before Biswanath Chariali Police Station alleging that there was reason to believe that petitioner had misappropriated PDS commodities. Police authorities were requested to take necessary steps as per law. The first information was treated as FIR and on the basis of the same, Biswanath Chariali P.S. Case No.69/2013 under Sections 420/409/ 379 IPC was registered. Apprehending arrest, petitioner approached this 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 bail to the petitioner. 7. 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. 8. However, respondent No.3 issued the impugned order dated 4.4.2013 cancelling 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 petitioner requested respondent No.3 to review such order, the same did not receive any response. 9. Aggrieved, petitioner has filed the present writ petition seeking the reliefs as noticed above. 10. Contention of the petitioner is that the impugned cancellation of licence 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 application of mind and the impugned order is also without jurisdiction. 11. Respondent No.3 has filed affidavit through Assistant Director of Food, Civil Supplies and Consumer Affairs, Biswanath Chariali. He has stated that petitioner 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 before 30.3.2013 but it was received belatedly on 1.4.2013. Reply of the petitioner was found not satisfactory. Inspector, Food, Civil Supplies and Consumer Affairs, Biswanath Chariali lodged FIR against the petitioner before Biswanath Chariali 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 petitioner 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 provisions of Assam Public Distribution of Articles Order, 1982. Fair price shop licence of the petitioner 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 provisions of Assam Public Distribution of Articles Order, 1982. Licence was cancelled after receiving the show cause reply which was not found satisfactory. Contending that there is no merit in the writ petition, the answering respondent seeks dismissal of the same. 12. In his reply affidavit, petitioner has stated that he received the show- cause notice on 27.3.2013 and sent the reply within 3 days. Receipt of the reply after one day is not very material. Petitioner was not informed as to whether his show cause reply was satisfactory or not. Respondent No.3 straightway cancelled the liicence of the petitioner by the impugned order dated 4.4.2013. Petitioner 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 passed after perusal of the case diary. Lodging of first information before considering petitioner's show cause reply reflects the closed mind and biased attitude of respondent Nos.3 and 4. Petitioner has further stated that there is wrong quoting of section in the impugned order as respondent No.3 could not have passed order under Section 7 of the Essential Commodities Act, 1955 as such a power 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 carried 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. 13. Heard Mr. K. Sarma, learned counsel for the petitioner and Mr. B.J. Ghosh, learned Govt. Advocate, Assam, who has also produced the record. 14. Mr. Sarma, learned counsel for the petitioner submits that a bare perusal of the show cause notice and the impugned cancellation order would disclose the closed mind of the authority. They were determined to close down the fair price shop of the petitioner. Alleging that no reasonable opportunity of hearing was given to the petitioner, learned counsel submits that the impugned cancellation is in gross violation of the principles of natural justice and fair procedure. They were determined to close down the fair price shop of the petitioner. Alleging that no reasonable opportunity of hearing was given to the petitioner, learned counsel submits that the impugned cancellation is in gross violation of the principles of natural justice and fair procedure. Referring to various provisions of the Essential Commodities Act, 1955 and the Assam Public Distribution of Articles Order, 1982, learned counsel for the petitioner submits that the impugned cancellation is legally not sustainable and requires to be set aside and quashed. 15. Opposing the submissions of Mr. Sarma, learned counsel for the petitioner, 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 reply though received belatedly, was duly considered. Since the reply was found to be not satisfactory, impugned order had to be issued. He submits that nothing much should be read into the act of immediate lodging of FIR as it was an administrative step taken, for cancellation of licence and criminal prosecution for violation of the statutory provisions by the licensee are two different things. He submits that violation of statutory provisions in the distribution of PDS articles is a serious matter and has to be strictly enforced. He, therefore, seeks dismissal of the writ petition. Learned State Counsel has also produced the record. 16. Submissions made have been considered. Also perused the record produced. 17. To provide for the control of production, supply and distribution and trade and commerce of certain commodities treated as essential commodities, the Essential Commodities Act, 1955 was enacted. In exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955 read with the Government 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 Distribution of Articles Order, 1982( 1982 Order). 18. Order 14 provides that no holder of a licence issued under the 1982 Order shall contravene any of the terms and conditions of the licence. As per Order 18, every appointed dealer shall during the shop hours display the stock of notified articles alongwith their corresponding prices at a conspicuous place near the entrance to his business premises. 18. Order 14 provides that no holder of a licence issued under the 1982 Order shall contravene any of the terms and conditions of the licence. As per Order 18, every appointed dealer shall during the shop hours display the stock of notified articles alongwith their corresponding prices at a conspicuous place near the entrance to his business premises. Order 15(1) provides that if any licensee or any person acting on his behalf contravenes any of the terms and conditions of the licence, then without prejudice to any other action that may be taken under the Essential Commodities Act, 1955, his licence maybe 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 reasonable opportunity of stating his case against the proposed cancellation. However, during the said proceeding, the Licensing Authority can suspend the licence but such suspension should not be for a period exceeding 90 days. Order 29 of the 1982 Order provides for filing of appeal by any aggrieved person against an order passed under the 1982 Order. 19. Coming to the present case, it is seen from the record that show cause notice was issued to the petitioner on 25.3.2013, received on 27.3.2013. The 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 and 18 of the 1982 Order. Petitioner submitted his reply on 29.3.2013 not only denying such allegations but also explaining the discrepancy in respect of atta. The reply of the petitioner was received on 1.4.2013. However, by the impugned order dated 4.4.2013, the licence of the petitioner was cancelled on the ground that there were violations of Orders Hand 18 by the petitioner. It was further stated that the record of the stock as reflected in the stock book was found inconsistent with the stock of commodities. Record further reveals that inspection 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. 20. Record further reveals that inspection 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. 20. 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 action should not be resorted to hastily. Order 15(2) of the 1982 Order clearly mandates that no order of cancellation shall be made without giving the licensee reasonable opportunity of hearing but also provides that during such proceedings the Licensing Authority can suspend the licence for a period not exceeding 90 days, hi 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. 21. In the present case, it is seen that the entire case against the petitioner 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 confronted 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, the petitioner had submitted his reply. But neither the record nor the impugned order 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 very vague and devoid of any particulars save and except making a general statement of violation of the two mentioned pro visions of the 1982 Order. 22. Thus, in the facts and circumstances of the case, the Court is of the view that impugned order of cancellation of licence is in violation of the principles of natural justice and fair play. Accordingly, the same cannot be sustained 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 petitioner. 23. Writ petition is allowed. Accordingly, the same cannot be sustained 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 petitioner. 23. Writ petition is allowed. However, there shall be no order as to cost. Record produced by Mr. B.J. Ghosh, learned Govt. Advocate is returned back.