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2019 DIGILAW 179 (GAU)

JYOTI DUTTA v. STATE OF ASSAM

2019-02-07

KALYAN RAI SURANA

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JUDGMENT : KALYAN RAI SURANA, J. 1. Heard Mr. T.J. Mahanta, learned Senior Counsel assisted by Mr. P.P. Dutta, learned counsel for the petitioner. Also heard Mr. M.R. Adhikari, learned Government Advocate for the State respondents. 2. In this writ petition under Article 226 of the Constitution of India, the case projected by the petitioner is that she was the holder of a Fair Price Shop dealer licence bearing No. SVSL 4/ 2001/ 56 dated 09.10.2009 in Ward No.10 of Amguri Town in the district of Sivasagar, Assam. However, while the petitioner was expecting the issuance of necessary allotment orders in respect of PDS articles list of beneficiaries as well as counter foils of the Family Identity Cards (FIC), BPL, APL and AAY Cards of the beneficiaries, the said requisites were not made available to the petitioner. However, despite repeated persuasion, the Superintendent of Food and Civil Supplies & Consumer Affairs (respondent No.5) refused issuance of the allotment orders and counter foils of the FIC, BPL, APL and AAY Cards to the petitioner on the ground that there were 30 public complaints against the petitioner. Therefore, the petitioner had applied for disclosure of information about those public complaints by letter dated 11.11.2009 under RTI Act, 2005 before the Additional Deputy Commissioner, Sivasagar and on the same day the petitioner had also filed an RTI application before the Superintendent, Food and Civil Supplies and Consumer Affairs, Sivasagar thereupon by letter under Memo No. SVSL.60/07/1733 dated 08.12.2009, the petitioner was provided a RTI reply to the effect that "No any complaint received from the public". 3. Thereafter, the petitioner was served with the order dated 10.12.2009 passed by the Deputy Commissioner-cum-Appellate Authority on the RTI application of the petitioner by which the RTI application filed by the petitioner was rejected. However, the petitioner was served with an allotment order dated 22.12.2009 in respect of allotment of sugar for 50 FIC's for the month of December, 2009. However, on 30.12.2009, the petitioner had informed the Deputy Commissioner, Sivasagar that although only 50 FIC holders were attached to her, but as no counter foil for the said allotment was supplied to her inspite of her constant approach for the same, the petitioner expressed inability to lift the allotted sugar. However, on 30.12.2009, the petitioner had informed the Deputy Commissioner, Sivasagar that although only 50 FIC holders were attached to her, but as no counter foil for the said allotment was supplied to her inspite of her constant approach for the same, the petitioner expressed inability to lift the allotted sugar. In the meanwhile, having been denied the requisite RTI information, the petitioner had filed an appeal before the Chief Information Commissioner, Assam Information Commission on 31.12.2009. Thereafter, the authorities, had again issued a fresh allotment letter for lifting levy sugar on 20.02.2010 and accordingly, the petitioner had lifted such supply. In the meanwhile, the Assam Information Commissioner had directed the personal appearance of the Deputy Commissioner, Sivasagar for hearing the appeal of the petitioner, as a retaliatory measure, the Deputy Commissioner, Sivasagar by order No. SVS/ 3/ 2010/ 2 dated 10.02.2010 had suspended the Fair Price Shop/ dealer licence of the petitioner. 4. It is further projected that despite the order dated 23.02.2010 passed by the State Information Commission, by which direction was issued to the Deputy Commissioner, Sivasagar to provide requisite information, but such information has not been furnished till date. In respect of non-allotment of PDS articles the petitioner had informed the Deputy Commissioner, Sivasagar in writing by letter dated 26.02.2010 about non-receipt of the allotment order in respect of rice for the month of Jan 2010 for which she was unable to lift the said articles. However, on the ground that the petitioner had failed to lift rice for the month of January, 2010. The Deputy Commissioner, Sivsagar, issued a show-cause notice dated 17.03.2010 to the petitioner as to why the Fair Price Shop/ Dealer licence of the petitioner should not be cancelled by initiating legal action against the petitioner. The petitioner responded by submitting her reply on 24.03.2010. However, the Deputy Commissioner, Sivasagar by issuing another show-cause notice dated 27.04.2010 had changed the stand by now alleging that there were 70 complaints from the beneficiaries, who were refusing to lift articles from the shop of the petitioner but the petitioner was still forcing them for collecting PDS articles from her shop, as such, the said authority had threatened to cancel the licence of the petitioner and to initiate action against her as per the law. In response, the petitioner, by her reply dated 03.05.2010 took a stand that most of the complaints were under forged signature, signature of persons who had died atleast 4/5 years back and people who had left Amguri and therefore, a request was made that the said 70 complainants be called to be sign in front of the Deputy Commissioner and in her presence. Nonetheless, the Deputy Commissioner, Sivasagar by order dated 24.05.2010, had cancelled the PDS retail licence of the petitioner on the allegation of non-lifting of essential commodities for the month of January, 2010. 5. The petitioner had preferred on appeal to the Upper Assam Commissioner, Jorhat. However, the said authority by relying on the para-wise comments provided by the Deputy Commissioner, Sivasagar held that it was not a fact that the petitioner was not given an allotment order for lifting other commodities other than sugar and SK oil for the month of January, 2010 and relying on the report of the Special Messenger (checker), the Commissioner, Upper Assam Division, Jorhat held that the allotment order of rice was duly served on the petitioner who had refused to accept the allotment order on the plea that the counter foils were not given and therefore, it was held that the petitioner had violated the terms and conditions of the licence by non-lifting of the allotted quantity of rice and therefore, the cancellation of the licence of the petitioner was upheld. 6. The learned Senior Counsel for the petitioner has submitted that in this case the party arrayed as respondent No.4 was the Deputy Commissioner, Sivasagar. However, while the said authority did not personally file his affidavit-in-opposition, the Deputy Director of Food and Civil Supplies and Consumer Affairs had filed an affidavit-in-opposition on behalf of the respondent No.4. It is stated that although it was projected that he was authorized by the respondent No.4 to file the said affidavit-in-opposition, but no materials has been disclosed to show the existence of any authority and also no material to show the existence of 70 complaints against the petitioner. It is submitted that there is no material on record to show that the counter foils of the FIC were provided to the petitioner. It is submitted that there is no material on record to show that the counter foils of the FIC were provided to the petitioner. Hence, it is submitted that without counter foils of the cards of the beneficiaries it will be futile exercise to lift articles without knowing the list of the beneficiaries to whom the PDS articles was to be distributed. Moreover, it is submitted that the initial stand of the Deputy Commissioner, Sivasagar for cancelling of the licence was that there were 30 complaints, which later on became 70 fresh complaints and that there was no denial of the statement that the signatories to the 70 complaints were false, were of deceased persons and were of persons who left Amguri. It is submitted that the State has not been able to justify the cancellation of the PDS retail licence and moreover, it is submitted that merely on the basis of the para-wise comments, the Commissioner, Upper Assam Division had decided the appeal without bothering to call for and verify the records. 7. Per contra, the learned Government Advocate has submitted that the respondent No.4 had taken action against the petitioner as she was found to have violated the Clause 14, 26 of the Assam Public Distribution of Articles Order, 1982 by not lifting the allotted quantity of PDS articles and by not distributing it to the beneficiaries which is a severe lapse on the part of the petitioner and moreover, it is submitted that as the Deputy Commissioner, Sivasagar had made impartial inquiry, this Court in exercise of extra ordinary jurisdiction ought not to interfere with the cancellation of the licence of the petitioner or with the appellate order passed by the Commissioner, Upper Assam Division, Jorhat. 8. It is seen that the case projected by the petitioner is that the Superintendent of Food and Civil Supplies and Consumer Affairs, Sivasagar had refused to issue an allotment order and counter foils of the Family Identity Cards (FIC), BPL, APL and AAY cards to the petitioners, there is no denial on record. Moreover, it is not the case projected by the respondent No.4 that there was no necessity for the PDS, Fair Price Shop Dealer to hold that the counter foils of the FIC, BPL, APL and AAY cards as a pre-condition to supply the PDS articles to the beneficiaries. Moreover, it is not the case projected by the respondent No.4 that there was no necessity for the PDS, Fair Price Shop Dealer to hold that the counter foils of the FIC, BPL, APL and AAY cards as a pre-condition to supply the PDS articles to the beneficiaries. It is seen that in the affidavit-in-opposition filed on behalf of the respondent No.4, the Deputy Director, Food and Civil Supplies had relied on the stand of the petitioner that she had received 14 out of 19 counter foils of consumers tagged with her Fair Price Shop, and the further stand of the respondent No.4 is that the petitioner had been provided a total of 20 numbers of counter foils. Moreover, in the affidavit-in-opposition filed by the respondent No.4 it has been stated that the petitioner was provided with a list of 50 consumers from 2 Nos. of Samabai Samiti without stating that the petitioner could distribute the PDS articles on the basis of only such list. It is appalling to note that when the respondent No.4 has clearly admitted that only a list of 50 beneficiaries was provided to the petitioner, how the respondent No.4 could have entertained a compliant of 70 complainants. Therefore, it prima-facie appears that the respondent No.4 i.e. Deputy Commissioner, Sivasagar had taken action against the petitioner without even caring to verify as to how many beneficiaries were allotted to the petitioner. A perusal of the allotment letter dated 22.12.2009 for lifting of levy sugar, it is clearly mentioned in the said order that 50 FIC cards was attached to the petitioner and similarly in the allotment letter dated 22.01.2010 in respect of allotment of levy sugar as against the petitioner it is clearly mentioned that 50 FIC holders are attached to the PDS shops of the petitioner. Therefore, the ground on which the PDS shop licence of the petitioner was cancelled is vitiated by error apparent on the face of record. 9. This Court is constrained to observe that in this writ petition the respondent No.4 is the Deputy Commissioner, Sivasagar but the affidavit-in-opposition was sworn by Deputy Director, Food and Civil Supplies, who though claimed to have an authority on behalf of the Deputy Commissioner, has not disclosed such authority. 9. This Court is constrained to observe that in this writ petition the respondent No.4 is the Deputy Commissioner, Sivasagar but the affidavit-in-opposition was sworn by Deputy Director, Food and Civil Supplies, who though claimed to have an authority on behalf of the Deputy Commissioner, has not disclosed such authority. Therefore, in the absence of such authority, this Court is inclined to hold that the said affidavit-in-opposition sworn by the Deputy Director, wherein most of the para viz. 1 to 5, 8, 11 to 20, 21, 23 to 36, 38 and 39 are pleaded to be borne by personal knowledge cannot be accepted because the said deponent has not stated on oath that during which period and in what manner he had dealt with the file pertaining to the petitioner. Moreover, according to the said affidavit statements made in para 6, 7, 9, 10, 20, 22 and 37 are verified to be matter of records, but, no records have been produced or annexed to the said affidavit-in-opposition. Therefore, the affidavit-in-opposition filed on behalf of the respondent No.4 is unacceptable as not properly sworn or verified. Moreover, it is seen that the statements made by the petitioner that she was not given the allotment letter and the counter foils of FIC, BPL, APL and AAY cards, as made in para 23, 25, 27 and 29 of the writ petition those statements have not been subsequently denied in the relevant reply given in para 24, 25, 27 and 28. Therefore, the statement of the petitioner about non-allotment of the counter foils for FIC, BPL, APL and AAY cards of the beneficiaries is deemed to have been admitted by the respondent No.4 by applying doctrine of nontraverse. 10. In the overall view of the matter, as discussed above, this Court has no hesitation to hold that the respondent No.4 has not been justified in cancelling of the PDS Shop/ dealer licence of the petitioner. 11. Moreover, it is seen that the Commissioner, Upper Assam Division, Jorhat had relied on the para-wise comments of the District Commissioner, Sivasagar and rejected the said appeal. The relevant para is quoted below: "Accordingly, the Deputy Commissioner, Sivasagar supplied total 70 numbers of compliant copies to the appellant on 5.3.2010. 11. Moreover, it is seen that the Commissioner, Upper Assam Division, Jorhat had relied on the para-wise comments of the District Commissioner, Sivasagar and rejected the said appeal. The relevant para is quoted below: "Accordingly, the Deputy Commissioner, Sivasagar supplied total 70 numbers of compliant copies to the appellant on 5.3.2010. The appellant also submitted that she gave replies to the two show cause notices served against her for cancellation of the retail PDS licence but the Deputy Commissioner, Sivasagar without accepting her replies cancelled her licence. In his para-wise comments the learned Deputy Commissioner, Sivasagar mentioned among others that it was not a fact that the appellant was not given the allotment order for commodities other than sugar and s.k. oil for the month of January, 2010. As per the report of the special messenger (checker) the allotment order of AAY rice, BPL rice and APL rice was duly served on the appellant who, however, refused to accept these allotment orders on the plea that the counter-foils were not given to her as mentioned above. Therefore, it is clear that the appellant did violate the terms and condition of the licence by non-lifting of the allotted quantities of rice under BPL, APL and AAY categories. As such, I do not find any reason to interfere with the decision of the learned Deputy Commissioner, Sivasagar for cancellation of the retail PDS licence of the appellant. The order passed by the learned Deputy Commissioner vide his No.SVSL.3/ 2010/ 25 dated 24.5.2010 is upheld. The appeal is rejected." 12. In that connection, it is seen that the said authority had not called for any of the records and did not verify for itself as to how the petitioner to whom only to 50 FIC cards were attached as per allotment orders dated 22.12.2009 and 22.01.2010, could have lifted PDS articles for AAY rice, BPL rice and APL rice. The Commissioner, Upper Assam Division, Jorhat appears to have decide the matter perfunctorily without considering how 70 complaints could have come if only 50 FIC cards were attached to the petitioners, more so, when except for lifting PDS articles vide allotment letter dated 30.02.2010 only for levy sugar, no supplies were actually made to the petitioner. The Commissioner, Upper Assam Division, Jorhat appears to have decide the matter perfunctorily without considering how 70 complaints could have come if only 50 FIC cards were attached to the petitioners, more so, when except for lifting PDS articles vide allotment letter dated 30.02.2010 only for levy sugar, no supplies were actually made to the petitioner. Moreover, the said authority also did not visit the point that when the Chief Information Commissioner had directed the Deputy Commissioner, Sivasagar to submit relevant information, why the Deputy Commissioner, Sivasagar still withheld the information and deliberately violated the directions of the State Information Commission and how can 30 complaints subsequently multiply to 70 complaints after the direction by the State Information Commissioner to the respondent No.4 to appear at the hearing. In this case, the PDS licence was granted on Oct, 2009 and the allegation of non-receipt of articles which was the complaint made by the petitioner on Nov, 2009. Therefore, it is apparent that no supplies could have been made to the petitioner and as per the admission of the respondent No.4, only 14 FIC were first given with the petitioner and subsequently 20 FICs were given. Therefore, in the absence of even 50 counter foils of 50 FIC being furnished to the petitioner, the petitioner could not have lifted any PDS articles for distribution when the beneficiaries were not known to the petitioner. Hence, it appears that the Commissioner, Upper Assam Division, Jorhat had heard the appeal of the petitioner perfunctorily and therefore, the said order dated 30.01.2012 passed by the Commissioner, Upper Assam Division is also set aside and quashed. 13. As a result, the respondent No.4, i.e. the Deputy Commissioner, Sivasagar who is also the licencing authority for PDS retail shop/ dealer licence, shall issue a fresh PDS licence to the petitioner within a period of 30 days from today on receipt of the copy of this order, on the basis of the previous PDS licence of the petitioner bearing No. SVSL.4/ 2001/ 58 dated 09.10.2009, without requiring the petitioner to comply with any further formalities so that she is not put to anymore suffering at the hands of the said authority. However, if any further legal formalities are to be complied with, the same can be done within a month from the granting of such PDS retail/ dealer licence. 14. However, if any further legal formalities are to be complied with, the same can be done within a month from the granting of such PDS retail/ dealer licence. 14. As the petitioner shall have to deal with the respondent No.4 for all her licence requirements, this Court has refrained to impose a cost upon the respondent No.4.