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2014 DIGILAW 1118 (GUJ)

Atulkumar Chhaganlal Shah v. Asstt. Collector

2014-11-20

ABHILASHA KUMARI

body2014
JUDGMENT : Abhilasha Kumari, J. The challenge in this petition under Article 226 of the Constitution of India, is to the order dated 12.11.2013, passed by the Assistant Collector, Bardoli Prant, Bardoli, District: Surat, who is arraigned as respondent No.1 in the petition, cancelling the licence of the petitioner as a Stamp Vendor. 2. Briefly stated, the facts giving rise to the petition are as follows: 2.1 The petitioner was granted a licence as Stamp Vendor bearing Licence No.1/1974 under the provisions of the Gujarat Stamp Act, 1958. According to the petitioner, he is one of the oldest Stamp Vendors in Bardoli, District Surat. The licence of the petitioner has been renewed from time to time. The last renewal of the licence took place on 31.03.2013, for a period of one year, which was to expire on 31.03.2014. As per the petitioner, he is carrying on his duties as a Stamp Vendor ever since 1974, diligently, and no complaint of whatsoever nature has been filed against him, till date. The Mamlatdar, Bardoli, issued a Show-cause Notice dated 03.10.2013, to the petitioner, stating that in a surprise inquiry by the Assistant Collector and Mamlatdar, it was found that since the past three days, the petitioner was frequently visiting the E-Dhara Department. He was, therefore, asked to show cause within four days why his licence as Stamp Vendor should not be cancelled. The petitioner replied to the show-cause notice dated 03.10.2013, vide communication dated 08.10.2013, indicating that he has not visited the E-Dhara Branch as he is not keeping good health. However, it may be possible that his son may have done so in order to help villagers in making inquiries. Respondent No.1 issued a second Show-cause Notice dated 28.10.2013 to the petitioner, calling upon him to show cause why his licence as Stamp Vendor should not be cancelled. The petitioner replied to the said notice on 07.11.2013. However, respondent No.1 cancelled the licence of the petitioner as Stamp Vendor, vide the impugned order. Aggrieved thereby, the petitioner has approached this Court by way of the present petition. 3. Mr.R.R. Marshall, learned Senior Advocate with Mr. Arpit A. Kapadia, learned advocate, has appeared for the petitioner. The petitioner replied to the said notice on 07.11.2013. However, respondent No.1 cancelled the licence of the petitioner as Stamp Vendor, vide the impugned order. Aggrieved thereby, the petitioner has approached this Court by way of the present petition. 3. Mr.R.R. Marshall, learned Senior Advocate with Mr. Arpit A. Kapadia, learned advocate, has appeared for the petitioner. 3.1 It is submitted that in the first notice dated 03.10.2013, the Mamlatdar has stated that in a surprise inquiry it has come to his notice that for the past three days the petitioner is visiting the E-Dhara Department time and again and causing a disturbance in the working of the said department. No other allegation has been made against him. The petitioner replied to the said notice issued by the Mamlatdar, vide communication dated 08.10.2013, clearly stating that he has not visited the E-Dhara Department as he is not in good health and works from his own office. The petitioner has further explained that it may be possible that his son, in order to help ignorant villagers, may have accompanied them to the E-Dhara Office, though this would not be repeated in future. It is submitted that respondent No.1, latching on to this explanation of the petitioner's, issued a second notice to him on 28.10.2013. However, without taking into consideration the explanation of the petitioner that he has not visited the E-Dhara department, his licence has been cancelled merely on an assumption that his son has visited the said department. 3.2 It is next submitted that the second Show-cause Notice dated 28.10.2013, has been issued after the petitioner stated in the reply to the first notice that his son may possibly have visited the E-Dhara department. The impugned order has been passed on the ground that the son of the petitioner has visited the E-Dhara department and caused a disturbance and obstruction in its working. As such, the impugned order is beyond the first Show-cause Notice dated 03.10.2013, wherein there is no mention of the son of the petitioner, at all. 3.3 Learned Senior Advocate has further submitted that the licence of the petitioner as Stamp Vendor cannot be cancelled only on the ground that his son has come to the E-Dhara department. If the respondents were of the opinion that the petitioner's son has caused any disturbance, they could have dealt with him in accordance with law. 3.3 Learned Senior Advocate has further submitted that the licence of the petitioner as Stamp Vendor cannot be cancelled only on the ground that his son has come to the E-Dhara department. If the respondents were of the opinion that the petitioner's son has caused any disturbance, they could have dealt with him in accordance with law. The petitioner cannot be punished for a supposed wrong allegedly committed by his son. 3.4 It is contended that the impugned order does not contain even a single finding against the petitioner. The order has been passed without any material, either present before the Authority, or supplied to the petitioner. At the time when the impugned order was passed, there was no material against the petitioner. However, such material has been manufactured later on, as it is clear from the affidavit-in-reply filed on behalf of respondent No.1, with which affidavits of certain persons have been appended, which have been deposed after the passing of the impugned order. This clearly reveals that the respondents are trying to justify the impugned order by supplementing it with extraneous material, manufactured subsequently. That it is a settled position of law that an order cannot be supplemented by any averment or material appended to the affidavit-in-reply filed subsequently. 3.5 That no material that may have weighed with respondent No.1 in cancelling the licence of the petitioner, has been supplied to him; therefore, even if it is assumed that there was such material, the petitioner has no knowledge of the same and an order cannot be passed against the principles of natural justice. 3.6 It is next urged that the petitioner has been a Stamp Vendor ever since 1974. If at all some error was found, it was certainly not a case for the most drastic punishment of the cancellation of his licence. At the most, a warning, reprimand, or fine, could have been imposed. Referring to Rule 62 of the Gujarat Stamp Supply and Sales Rules, 1987 ("the Rules" for short), it is submitted that this Rule contemplates that the Collector, or any officer authorised by the State Government in this behalf shall, after giving an opportunity of being heard to the licenced vendor, impose a fine not exceeding five hundred rupees for committing any of the breaches of the Rules mentioned in the said provision. These Rules provide for the manner in which the Stamp Vendor has to carry out his duties, such as keeping appropriate stock of Stamps in the appropriate manner and selling them in accordance with the Rules. The petitioner has not committed any breach of the Rules. The ground on which the licence of the petitioner has been cancelled is not serious enough to warrant the punishment of the cancellation of his Stamp Vendor's licence. 3.7 That in the impugned order, respondent No.1 has accepted the case of the petitioner that he has not visited the E-Dhara department. But at the same time, respondent No.1 has punished the petitioner because his son supposedly went there. The son of the petitioner is not a Stamp Vendor. If it is accepted that the petitioner did not go to the E-Dhara Branch, there is no reason to cancel his licence. 3.8 It is next submitted that the impugned order suffers from non-application of mind as there is not a single reason in the impugned order, why the explanation rendered by the petitioner has not been accepted. In this connection, reliance has been placed upon a judgment of the Supreme Court in the case of Kirtikumar Indravadan Shah v. State of Gujarat and others reported in 2006(3) GLH 313 . 3.9 Lastly, it is submitted by the learned Senior Counsel, that while passing the impugned order cancelling the licence of the petitioner, the respondents have snatched away his very livelihood. It is submitted that the present case does not warrant such drastic action. Even in cases where such action may be called for, it must be done with due recourse to law, fairly, transparently and reasonably. There is not a single word in the impugned order against the petitioner. Yet, his licence has been cancelled solely on the ground that his son has visited the E-Dhara department. The petitioner cannot be punished for his son's alleged action. On the above grounds, it is prayed that the impugned order be quashed and set aside and the petition allowed. 4. The petition has been opposed by Mr.P.P.Banaji, learned Assistant Government Pleader, who has taken this Court through the affidavit-in-reply filed on behalf of respondent No.1. 4.1 It is submitted that the petitioner has deputed his son to do his work as Stamp Vendor, therefore, respondent No.1 has rightly cancelled the licence of the petitioner. 4. The petition has been opposed by Mr.P.P.Banaji, learned Assistant Government Pleader, who has taken this Court through the affidavit-in-reply filed on behalf of respondent No.1. 4.1 It is submitted that the petitioner has deputed his son to do his work as Stamp Vendor, therefore, respondent No.1 has rightly cancelled the licence of the petitioner. That there are affidavits on record which have been appended to the affidavit-in-reply filed by respondent No.1, deposed by several persons who have stated that the son of the petitioner has visited the E-Dhara Department and caused hindrance and obstruction in its working. 4.2 It is further submitted that the impugned order is a well-reasoned order, therefore, it deserves to be upheld and the petition dismissed. 5. This Court has heard learned counsel for the respective parties at length, perused the averments made in the petition, contents of the impugned order and other documents on record. From the material on record it emerges that the first notice issued by the Mamlatdar to the petitioner is dated 3-10-2013. In the said notice, it is stated that on the Mamlatdar's surprise inquiry it came to his notice that for the past three days the petitioner has been visiting the E-Dhara Department time and again, causing a disturbance in the functioning of the said department. Admittedly, there is no mention in the said notice regarding the son of the petitioner. From this it is clear that the initial case of the respondents against the petitioner did not involve his son, at all. In the reply to the show cause notice dated 3-10-2013, the petitioner explained that he has not visited the E-Dhara Department at all, due to his ill health, but it could be possible that his son may have visited the department in order to help ignorant villagers with their work. It appears that respondent No.1 has taken a cue from this explanation of the petitioner's and issued the second Show-Cause Notice dated 28-10-2013, mentioning the visits of the petitioner's son, as stated by the petitioner. In the reply to this notice, the petitioner has maintained his original stand that he has not visited the E-Dhara Department as he suffers from the diseases of diabetes and blood pressure and has undergone surgery, but his son could have visited the said branch in order to help ignorant villagers with their work. In the reply to this notice, the petitioner has maintained his original stand that he has not visited the E-Dhara Department as he suffers from the diseases of diabetes and blood pressure and has undergone surgery, but his son could have visited the said branch in order to help ignorant villagers with their work. However, the petitioner has stated that such an incident would not occur in future. Both the explanations of the petitioner did not find favour with respondent No.1, who passed the impugned order dated 12.11.2013, cancelling the licence of the petitioner as Stamp Vendor, before the said licence was scheduled to expire on 31.03.2014. It is stated in the impugned order, that the petitioner has violated the conditions on which the licence was granted, as his son was causing obstructions in the working of the department. It is further mentioned that the son of the petitioner was telling applicants that he would have their files dealt with expeditiously, for some financial consideration. It is further stated in the said order that the son of the petitioner was creating undue pressure on applicants to get their work done which has resulted in a violation of condition No.9 imposed upon the petitioner while granting the licence. It may be noted that none of these grounds form a part of the Show-cause Notices issued to the petitioner. 6. At this stage, it may be pertinent to refer to the conditions mentioned in the licence of the petitioner which are as follows: "Conditions (1) That licensed vendor shall not sell the stamps other than those specified in their licence. (2) That no licenced vendor shall knowingly make a false endorsement on the stamp sold or a false entry in his register. (3) That no licensed vendor shall sell stamps to the public exceeding the limit required for the purpose of stamp on a single instrument. (4) That every licensed vendor shall, without delay deliver any stamp which he has in his possession on demand by any person tendering the proper value there of. At the same time for this work the licensed vendor, shall not accept any consideration more than the value of such stamp. (4) That every licensed vendor shall, without delay deliver any stamp which he has in his possession on demand by any person tendering the proper value there of. At the same time for this work the licensed vendor, shall not accept any consideration more than the value of such stamp. (5) That licensed vendor, having licence for sale of Revenue stamps & Non-judicial stamp papers shall keep an adequate stock of Revenue stamps, Non judicial stamped papers of the denomination of Rs.10/- for the sale to the public. (6) That licensed vendors shall not sell stamps before or after the prescribed hours for sale of stamps. (7) That licensed vendor shall not sell any impressed court fee stamps to the public exceeding the prescribed limit. (8) That licensed vendor shall keep and render such accounts as may be prescribed by the state Government and shall allow the collector or any other officer authorised (by the state Government) in this behalf to inspect the accounts and registers and to examine the stock of stamps in his possession. (9) That this licence can be suspended by the collector or any authority granting the license for breach of rules or any of the conditions specified in the licence." (Emphasis supplied) 7. Of the above conditions, only condition No.9 has been mentioned in the impugned order. This condition empowers the Collector or the Competent Authority to suspend the licence of the Stamp Vendor for breach of the Rules or any conditions specified in the licence. It is not the case of the respondents that the petitioner has committed a breach of conditions No.1 to 8 in the licence. Neither is it the case of the respondents that the petitioner has committed a breach of any Rule. Condition No.9 is an enabling condition conferring power upon the Competent Authority to suspend the licence but it is not a condition of which a breach can be made by the petitioner. 8. The most important aspect of the matter appears to be that neither of the Show-cause notices issued to the petitioner mention any breach of condition No.9. 9. It further emerges from the record that neither of the Show-cause Notices issued to the petitioner mention anything regarding his son coming to the E-Dhara Department and causing a disturbance. 8. The most important aspect of the matter appears to be that neither of the Show-cause notices issued to the petitioner mention any breach of condition No.9. 9. It further emerges from the record that neither of the Show-cause Notices issued to the petitioner mention anything regarding his son coming to the E-Dhara Department and causing a disturbance. The explanation of the petitioner to the first show-cause notice dated 03.10.2013, that his son may have undertaken some visits to the E-Dhara Department, has been made a ground for the passing of the impugned order. The second Show-cause Notice also only mentions this very explanation of the petitioner's, but there is no specific allegation regarding his son, in this notice as well. In the impugned order, respondent No.1 has recorded a finding that the son of the petitioner has been coming to the E-Dhara Branch as a Stamp Vendor, in an illegal manner and has committed illegal acts, which have been proved, for which reason the licence of the petitioner deserves to be cancelled. Neither of the Show-cause Notices contain the allegation that the son of the petitioner has posed as a Stamp Vendor and has committed illegal activities in the E-Dhara department of the respondent. The nature of such alleged illegalities, obstructions or disturbances allegedly caused by the son of the petitioner have not been stated in the Show-cause Notices or the impugned order. As such this Court is of the view that the impugned order is beyond the scope of the Show-cause Notice. It is a settled position of law that an order which is beyond the scope of the show-cause notice cannot stand the scrutiny of law. In this context, reference may be made to a judgment of this Court in the case of Dashrathlal Ishwarlal Patel v. State of Gujarat reported in 2013 (2) GLR 1257 wherein it has been held as below: "15. It is a well-settled position of law that an authority cannot consider the grounds that have not been stated in the show cause notice and no order can be passed, beyond the scope of the show-cause notice. 16. In Janardan Jaishankar Jokharkar v. State of Gujarat reported in 2008 (2) GLH 717 : 2008 (4) GLR 3054 , this Court has held as below: "15. 16. In Janardan Jaishankar Jokharkar v. State of Gujarat reported in 2008 (2) GLH 717 : 2008 (4) GLR 3054 , this Court has held as below: "15. On perusal of the record, it is noticed that in the notice dated 12.12.1988, pursuant to which the impugned order has been passed, no allegation about the construction touching the State Highway and/or insufficient margin was mentioned. In absence of any such reference in the notice, the impugned order passed by the Secretary (Appeals) turns into an order beyond the scope of the notice. The authority passing an order of adjudication cannot take into account the grounds or circumstances which are not alleged in the notice and/or in respect of which the petitioner is not put to notice. Otherwise, the very purpose of issuing notice and inviting explanation is frustrated, and going beyond the purview of the Show Cause Notice or taking into account aspects not enumerated in the Show Cause Notice and making them basis for the order also amount to violation of principles of natural justice. When an authority passes an order which is based on grounds or facts not alleged and stated in the notice, then such order results into denial of opportunity of hearing and becomes violative of audi alteram partem rule. In present case, it is obvious that the grounds of insufficient margin and/or the building touching the State Highway are not mentioned in the Show Cause Notice. Not only this, but even the order of the original and competent authority also does not contain any such finding of fact at his stage in the order dated 11.2.1989. In this view of the matter, it was not permissible for the Secretary (Appeals) to take into consideration aspects which did not form part of the Show Cause Notice and/or which were not reflected in the original order impugned before that authority. The impugned order, on this ground, alone deserves to be set aside." (Emphasis supplied) 17. In Kesarbhai Bhagwanbhai v. State of Gujarat, reported in 1997 (3) GLR 2142 , a similar view has been taken by this Court. 18. In Anand D. Lodariya Salt & Storage Pvt. Ltd. v. State of Gujarat Through Special Secretary, Spl.Civil Appli.No.9757 of 2012 decided on 28-12-2012 (reported in 2013(1) GLR 558 ), after considering the above judgments, this Court has held as below: "19. 18. In Anand D. Lodariya Salt & Storage Pvt. Ltd. v. State of Gujarat Through Special Secretary, Spl.Civil Appli.No.9757 of 2012 decided on 28-12-2012 (reported in 2013(1) GLR 558 ), after considering the above judgments, this Court has held as below: "19. The principles of law enunciated in the above-quoted judgments would squarely apply to the facts of the present case. By passing the impugned order that is undoubtedly beyond the scope of the Show Cause Notice and directing the vesting of the land for breach of conditions, other than condition No.6, for which the Show Cause Notice was issued, there is a flagrant violation of the principles of natural justice. The rule of Audi Alteram Partem that enjoins an adequate opportunity of hearing, has been violated by the respondents as the petitioners have not been granted an opportunity of hearing for the alleged breach of the other conditions, not mentioned in the Show Cause Notice. The findings of respondents Nos.2 and 1 are, therefore, unsustainable in law." (Emphasis supplied) 19. In the present case as well, this Court finds that the order passed by respondent No.2 is beyond the scope of the show cause notice, as it affixes sole responsibility for proper implementation of the NREGA Scheme upon the petitioner, which is not an allegation levelled against him at all, therefore, the petitioner has not been granted an opportunity of hearing to rebut this specific charge. The order passed by respondent No.2, insofar as it fixes sole responsibility for implementation of the NREGA Scheme upon the petitioner, is clearly beyond the scope of the show cause notice." 10. The principles of law enunciated in the above-quoted judgment would squarely apply to the facts of the present case, as it is obvious that the findings rendered by respondent No.1 in the impugned order are upon issues that have not been mentioned in the Show cause Notice. This would mean that the petitioner has not been granted an opportunity to rebut the same, which would offend the principles of natural justice. 11. The record reveals that the petitioner has made an application under the Right to Information Act, 2005 ("the RTI Act" for short), seeking information whether there is any complaint against him. In the reply thereto, appended at running page 31 of the petition, it is clearly mentioned that there is no complaint against the petitioner. 11. The record reveals that the petitioner has made an application under the Right to Information Act, 2005 ("the RTI Act" for short), seeking information whether there is any complaint against him. In the reply thereto, appended at running page 31 of the petition, it is clearly mentioned that there is no complaint against the petitioner. In spite of this, it appears that the respondents have, in their anxiety to justify the impugned order, got certain affidavits filed, which are appended to the affidavit-in-reply filed on behalf of respondent No.1 to the present petition. These affidavits are dated 01.02.2014 and 12.02.2014, which dates are much after the date of the passing of the impugned order. Both the affidavits are couched in identical, stereotyped language. It is evident that the respondents are trying to create material against the petitioner, after the passing of the impugned order, which is not at all permissible in law. 12. It is a settled position of law that the validity of an order made by any statutory authority can only be judged on the basis of the reasons mentioned therein and those reasons cannot be supplemented by fresh reasons in the shape of an affidavit-in-reply. This principle of law has been enunciated in the case of Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi reported in AIR 1978 SC 851 , in the following terms: "8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji ( AIR 1952 SC 16 ) (at p. 18): "Public orders publicity made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." Orders are not like old wine becoming better as they grow older." 13. In the present case, the attempt of respondent No.1 in filing affidavits of persons who have deposed subsequent to the passing of the impugned order, and the reliance placed upon them in the affidavit-in-reply, as well as the reasons and explanations stated therein, which travel far beyond the scope of the Show-cause Notices and the impugned order, makes it amply clear that the attempt is to create extraneous grounds against the petitioner. This course of action is not only deprecated but is impermissible in law. The stand taken by respondent No.1 in the affidavit-in-reply, as well as the affidavits appended thereto, therefore, are not worthy of consideration. 14. It may be relevant to note that a perusal of the impugned order nowhere reveals that there is any allegation against the petitioner himself, regarding his duties as a Stamp Vendor. No breach of the rules or conditions of his licence pertaining to his duties as a Stamp Vendor are mentioned. The petitioner cannot be punished for any alleged action committed by his son, though he, himself has not defaulted in his duties. If the respondents found the son of the petitioner loitering in their premises, creating obstructions or posing as a Stamp Vendor, as alleged, it was open to them to throw him out and take appropriate action against him, in accordance with law. The respondents have themselves deviated from their original case as stated in the first Show-cause Notice. They have taken a cue from the explanation of the petitioner that he has not visited the E-Dhara Branch due to his illness but it may be possible that his son might have done so, and made that very explanation a ground for passing the impugned order. An explanation cannot be converted into a charge or allegation, and that too without any material to support it. 15. The petitioner has held a Stamp Vendor's Licence since the year 1974. As is clear from the reply to the RTI application filed by the petitioner, there is no complaint against him till date. An explanation cannot be converted into a charge or allegation, and that too without any material to support it. 15. The petitioner has held a Stamp Vendor's Licence since the year 1974. As is clear from the reply to the RTI application filed by the petitioner, there is no complaint against him till date. The action of the respondents in cancelling the licence of the petitioner is a drastic one, directly and adversely affecting his very livelihood. Such drastic action requires serious reasons, which are not forthcoming from the material on record. A drastic punishment requires strong reasons and material in support of it. In the present case these are conspicuous by their absence. 16. The power to revoke licence under the Rule is contained in Rule 11, which reads as below: "11. Every licence granted under these rules shall be revocable at any time by the State Government or by the authority granting it." 17. The said Rule reserves unbridled power in the State Government or the authority granting the licence to revoke it "at any time". No circumstances or defaults are mentioned, for which the licence can be revoked. When absolute, unbridled power is vested upon an authority to take drastic action such as the cancellation of the licences, which would affect the livelihood of the petitioner and, therefore, the right to life under Article 21 of the Constitution of India, it is incumbent upon such authority not to exercise such power lightly or casually, but only for strong and cogent reasons, on the basis of supporting material. In the present case, as held herein-above, the impugned order is found to be beyond the scope of the Show-cause Notice and the reasons mentioned in it are not those for which the Show-Cause notices were issued. The affidavits annexed by respondent No.1 by way of the affidavit-in-reply are of a later date than the impugned order. Further, the reasons contained in the impugned order do not find support from any material mentioned in the said order. The so-called material has been created later on. 18. For the above reasons, in the considered view of this Court, the impugned order dated 12.11.2013, passed by the Assistant Collector, Bardoli Prant, Bardoli, District: Surat, is arbitrary, unreasonable and unsustainable in law, and deserves to be quashed and set aside. It is, therefore, quashed and set aside. 19. The so-called material has been created later on. 18. For the above reasons, in the considered view of this Court, the impugned order dated 12.11.2013, passed by the Assistant Collector, Bardoli Prant, Bardoli, District: Surat, is arbitrary, unreasonable and unsustainable in law, and deserves to be quashed and set aside. It is, therefore, quashed and set aside. 19. The petition is allowed in the above terms. Rule is made absolute accordingly. There shall be no orders as to costs. Direct service is permitted. Petition allowed.