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2018 DIGILAW 803 (GAU)

ABDUR ROUF v. STATE OF ASSAM

2018-05-15

MANOJIT BHUYAN

body2018
JUDGMENT : Manojit Bhuyan, J. Heard Ms. P. Bhattacharya, learned counsel for the petitioner as well as Ms. M. Bhattacharjee, learned counsel representing respondent nos. 1, 2, 3, 4 and 5. None for respondent no. 6, though served. 2. Challenge is made to the Order dated 10.04.2012 passed by the Deputy Commissioner, Dhubri in Appeal Case No. 1/2011 cancelling the dealer's licence of the petitioner as a PDS licence holder under Mankachar Samabai Samiti Ltd. The ground of challenge is that the said order of cancellation was passed by ignoring the provisions of Clause 15(2) of the Assam Public Distribution of Articles Order, 1982 (in short 1982 Order). 3. Facts in brief are that the petitioner was granted licence to run a Fair Price Shop and in the year 1988 at village Kakripara under Mankachar Samabai Samiti Ltd. for supply of PDS articles to as many as 274 Family Identity Card holders including 48 BPL Card holders. Following a complaint made by the respondent no. 6, who is a BPL card holder, alleging non-supply of PDS articles to him, an enquiry was conducted by the Inspector of Food and Civil Supplies and Consumer Affairs, Hatisingimari. The Report disclosed fault on the part of the petitioner with recommendation that the dealership agency of the petitioner be suspended and the entire population be tagged to the nearest agent under the same Mankachar Samabai Samiti. On the basis of the said Report, the licence of the petitioner was suspended and in the interest of the consumers, the entire population of the petitioner's agency was tagged with the nearest agency. This power of suspension was exercised in terms of Clause 15(1) of the aforesaid 1982 Order. 4. Being aggrieved, the petitioner instituted WP(C) 2069/2011 and by Order dated 19.09.2011 the said writ petition was dismissed on ground of availability of efficacious and alternative remedy by way of appeal under the provision of the 1982 Order. Consequent thereto, the petitioner filed appeal before the Deputy Commissioner, Dhubri i.e. the Appellate Authority in terms of the provisions under Clause 29(1)(d) of the 1982 Order. 5. The appeal so filed was registered as Appeal Case No. 1/2011 and the same was disposed of by Order dated 10.04.2012. The Appellate Authority i.e. the Deputy Commissioner, Dhubri considered all relevant records, heard the necessary parties including the petitioner and the respondent no. 5. The appeal so filed was registered as Appeal Case No. 1/2011 and the same was disposed of by Order dated 10.04.2012. The Appellate Authority i.e. the Deputy Commissioner, Dhubri considered all relevant records, heard the necessary parties including the petitioner and the respondent no. 6 and passed an order sustaining the order of suspension. However, not to stop there, the Appellate Authority also cancelled the petitioner's licence for having failed to establish his distribution records of BPL rice to the beneficiary i.e. Sohid Mia (Respondent No.6). The said order of cancellation was made subject to verification of the authenticity of the thumb impression of respondent no. 6, if necessary, on a report from the Forensic Science Laboratory, Assam, Guwahati. 6. For the purpose of deciding the present case, the issue for determination is whether the Deputy Commissioner could have exercised power and jurisdiction to cancel the petitioner's license in an appeal where challenge was made only to an order of suspension and not cancellation. In this regard, notice is had to the provisions of Clause-15 of the 1982 order and for better appreciation, the same is extracted hereunder: "15. (1) If any licensee or his agent or servant or any other 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 (Central Act 10 of 1955) his licence may be cancelled or suspended by any Order in writing of the Licensing Authority and an entry will be made in his licence relating to such suspension or cancellation. (2) No Order of cancellation shall be made under this Clause unless the licensee has been given reasonable opportunity or stating his case against the proposed cancellation by but during the pendency or in contemplation of the proceedings of cancellation of the licence, the licence can be suspended for a period not exceeding 90 days without giving any opportunity to the licensee of stating his case." 7. A perusal of the aforesaid provision, particularly Clause 15(1) shows that licence can be cancelled or suspended by an order in writing of the licensing authority. However, Clause 15(2) introduces a caveat, in that, no order of cancellation can be made unless the licensee has been given reasonable opportunity of explaining his case against the proposed cancellation. A perusal of the aforesaid provision, particularly Clause 15(1) shows that licence can be cancelled or suspended by an order in writing of the licensing authority. However, Clause 15(2) introduces a caveat, in that, no order of cancellation can be made unless the licensee has been given reasonable opportunity of explaining his case against the proposed cancellation. In the instant case, the appeal before the Appellate Authority was with regard to the legality and validity of the order of suspension. This being so, the Deputy Commissioner, Dhubri could not have cancelled the petitioner's licence without following the mandate of Clause 15(2), that is without first affording opportunity to the petitioner to explain against any proposed cancellation. It is not in dispute that the petitioner was never served with any notice proposing cancellation of licence. This being the admitted position, that part of the impugned Order dated 10.04.2012 relating to cancellation of the petitioner's licence, is not sustainable in law. Accordingly, the order of cancellation is set aside by maintaining the order of suspension of licence, making it clear that if the respondent authorities are keen to take the matter forward towards cancellation of the petitioner's licence, the same has to be done by following the procedure prescribed under Clause 15(2) of the 1982 Order. 8. Having regard to the above, the present petition stands partly allowed. Respondents would be at liberty to initiate fresh proceedings against the petitioner, if so advised.