Research › Search › Judgment

Tripura High Court · body

2021 DIGILAW 140 (TRI)

Neermahal Gas Agency v. State of Tripura

2021-08-26

S.TALAPATRA

body2021
JUDGMENT The petitioner is a sole proprietorship firm. The petitioner was holding a license for dealing in cooking gas under Tripura Cooking Gas [Licensing, Control and Maintenances of Supplies] Order 1985. According to the petitioner, on 04.06.2020, the petitioner was served a showcause [Annexure-3 to the writ petition] whereby the petitioner was asked to showcause as to why lawful action shall not be taken against her [the sole proprietor] for violation of provisions of the Tripura Cooking Gas [Licensing, Control and Maintenances of Supplies] Order 1985 and liquefied Petroleum Gas [Regulation of Supply and Distribution] Order 2000 including suspension/cancellation of the license. 2. For issuing the showcause notice, the licensing authority who issued the said showcause dated 04.06.2020 has laid down the background facts, which are in brief as follows: 1) The petitioner failed to maintain adequate stock of cooking gas at the business place for sale to the bonafide customer(s) whose names are registered with the agency for getting supply of cooking gas and to make home delivery of LPG cylinders at the address of registered customers. 2) During the visit of the Chief Minister in different villages of Sepahijala District on 29.05.2020, it was reported by the people of various villages in Kathalia, Nalchar and Mohanpur Blocks that Neermal Gas Agency, Sonamura [the petitioner herein] was not giving required number of gas cylinders to the public and they were made to visit again and again to the agency and had to wait for a long time in queue as the agency was not making home delivery of cylinders. 3) The Sub-Divisional Magistrate, Sonamura got the complaint inquired through one Hamenda Bikash Paul, Deputy Collector & Magistrate, Sonamura. It has been observed in the inquiry report, inter alia, thus: a) The agency did not supply LPG cylinder as per requirement of the customers. b) The local people have complained that the said agency [the petitioner] has been harassing the customers when they go for taking delivery of LPG cylinders. The said officer found such allegations to be correct. To mitigate the situation, the petitioner was instructed on several occasions to be consumer friendly but the petitioner did not give any heed to such instructions at all. c) The agency [the petitioner] has not been delivering LPG cylinders to the consumers by home delivery mode. The said officer found such allegations to be correct. To mitigate the situation, the petitioner was instructed on several occasions to be consumer friendly but the petitioner did not give any heed to such instructions at all. c) The agency [the petitioner] has not been delivering LPG cylinders to the consumers by home delivery mode. As the licensing authority found the acts of the petitioner in gross violation of the provisions of those orders, as quoted above, the petitioner was asked to give the reply by 12.06.2020, meaning within ten days. 3. The petitioner denied all the three major allegations by filing a reply to the said showcause notice dated 04.06.2020.The petitioner has asserted in the said reply that he has been running the business of cooking gas with due integrity, diligence and sincerity and without any blemish whatsoever. The petitioner had been maintaining adequate number of LPG cylinders for supply as per the requirement without causing any inconvenience to the registered customers. The petitioner has, however, partly admitted that for a short period there had been some difficulties in supplying the cylinders to the customers as per their requirement. 4. The petitioner has further asserted that she was dealing in the cooking gas following a consumer friendly policy but she has apprehended that “in order to quench their thirst of revenge they might have falsely reported against me.” 5. Immediately thereafter, the petitioner has further stated that due to the pandemic lockdown, the home delivery of the cylinders had been hampered. Moreover, in conformity to the COVID regulations, she was managing her business place with a limited number of staffs. When those regulations will be withdrawn, the home deliveries will be restored. The petitioner has urged the licensing authority to exonerate her from the allegations as brought. She has further urged not to take any adverse action against her. The petitioner was by the communication dated 08.07.2020 [Annexure-5 to the writ petition] was afforded personal hearing. During the personal hearing, the petitioner was examined on certain facts. For example, the licensing authority had placed before the petitioner the stock she had maintained of the domestic gas cylinders lifting from the IOCL Depot. The stock that was referred are as follows: 1) July, 2019 – 3,972 nos. 2) August, 2019 – 5,486 nos. 3) September, 2019 – 3,942 nos. 4) October, 2019 – 4,830 nos. For example, the licensing authority had placed before the petitioner the stock she had maintained of the domestic gas cylinders lifting from the IOCL Depot. The stock that was referred are as follows: 1) July, 2019 – 3,972 nos. 2) August, 2019 – 5,486 nos. 3) September, 2019 – 3,942 nos. 4) October, 2019 – 4,830 nos. 5) November, 2019 – 4,274 nos. 6) December, 2019 – 1,218 nos. 7) January, 2020 – 4,572 nos. 8) February, 2020 – 3,972 nos. 9) March, 2020 – 4,260 nos. 10) April, 2020 – 5,5,80 nos. 11) May, 2020 – 4,284 nos. 12) June, 2020 – 4,284 nos.” According to the licensing authority, the said stock position clearly demonstrates that in none of those months as referred above, the petitioner had lifted adequate gas cylinders and thus it is apparent that she had deprived the customers by not providing adequate numbers of cylinders, in order to satisfy her interest in the business. 6. In reply, the petitioner has stated that her gas agency gets supply from the Bishalgarh plant but sometimes supplies are not available from the plant. Thereafter, the petitioner has admitted that “I accept that there some lacking in my lifting of gas cylinders. In the future, I would cope up with such lacking. Presently my regular connection is 14,774 nos. In this case, I accept that in different months I have lifted less gas cylinders. Like in the month of December, I have taken only 8.24 percent gas cylinders in the future. I would rectify this.” But the petitioner has denied the allegations of misbehavior with the customers. Even the petitioner has assured during the personal hearing that she would ensure that no staff of her misbehaves with the customers. In response to the question that the petitioner is obligated to supply the gas cylinder by home delivery under Tripura Cooking Gas [Licensing, Control and Maintenances of Supplies] Order 1985, the petitioner has stated that if the customers demand for home delivery, then the agency is bound to deliver the same in the home. She has illustrated one or two difficulties in the reply. Thereafter, by the order dated 16.07.2020 [Annexure-7 to the writ petition], the license of the petitioner has been cancelled. She has illustrated one or two difficulties in the reply. Thereafter, by the order dated 16.07.2020 [Annexure-7 to the writ petition], the license of the petitioner has been cancelled. Having considered the relevance of the said order dated 16.07.2020, the entire text of the order is extracted hereunder : No. F.6-1(8)-DCS/2002/7985-90 Government of Tripura Directorate of Food, Civil Supplies & Consumer Affairs, P.N. Complex, Gurkhabasti Dated, Agartala, the 16th July, 2020 ORDER Whereas, an LPG Dealership License bearing No.22/LPG/DCS/2002 was issued in favour of Smt. Ratna Das, W/O Sri Sushanta Das, Sonamura Town. Sepahijala District, Prop. of M/s Neermahal Gas Agency, Sonamura Town to deal in cooking Gas under the provisions of the Tripura Cooking Gas [Licensing, Control and Maintenances of Supplies] Order 1985; AND Whereas, local people of many villages of Kathalia, Nalchar and Mohanbhog Blocks complained before the Hon’ble Chief Minister during his visit at Sonamura Sub-Division on 29/05/2020 against he Prop. of Neermahal Gas Agency for non delivery of cylinder as per their requirement, non delivery of LPG cylinder on home delivery mode and their harassment by the agency when they approach for taking delivery of LPG cylinder etc. AND Whereas, upon the direction of the undersigned all the complaints were got inquired by Sub-Divisional Magistrate, Sonamura and in the enquiry report submitted by SDM, Sonamura vide No.2(2)/SDM/SNM/FP/2005/2444 dated 3rd June, 2020 it was clearly mentioned that the complaints of the local people were true ; AND Whereas, on the basis of inquiry report of the SDM, Sonamura a Show Cause Notice vide No.F.6-1(8)DCS/2002/6058-66 dated 4th June, 2020 was served upon Smt. Ratna Das, Prop. of M/s. Neermahal Gas Agency, Sonamura, Sipahijala District; AND Whereas, the reply submitted by Smt. Ratna Das, Proprietor of M/s. Neermahal Gas Agency, Sonamura under reference No.Nil dated 12/06/2020 in response to the above Show Cause Notice have been examined and found to be not satisfactory due to the facts that she tried to evade many factual circumstances and in some cases she partly admitted her short comings. AND Whereas, with a view to ascertain her position clearly and give her more scope to state her case adopting principle of natural justice, Smt. Ratna Das, Prop. AND Whereas, with a view to ascertain her position clearly and give her more scope to state her case adopting principle of natural justice, Smt. Ratna Das, Prop. of M/s. Neermahal Gas Agency, Sonamura was asked to appear befoe the Licensing Authority for personal hearing and during personal hearing on 15/07/2020, Smt. Das admitted her lapses without any convincing justifications in the matters of not maintaining adequate LPG stoak in her agency premises godowns during the last 12 months time, non effecting home delivery to all the consumers especially those living in the border areas and harassment of the consumers leading to their utmost suffering while taking delivery of LPG cylinders from her agency; AND Whereas, for a period of last one year w.e.f. July, 2019 to June, 2020, Smt. Ratna Das had lifted maximum no. of cylinders (328% of total 14,774 nos. active consumer) in the month of April, 2020 and lifting of cylinders had been 27% in July, 2019, 37% in August, 2019, 27% in September, 2019, 33% in October, 2019, 29% in November, 2019, 8% in December, 2019, 31% in January, 2020, 27% in February, 2020, 29% in March, 2020, 29% in May, 2020 and 29% in June, 2020 against a bench mark of minimum 60% of total active consumers which proved beyond doubt the willful negligence of the licensee in lifting of adequate stock of LPG cylinders in her agency befitting to the requirement of her 14,774 nos. active consumers at the cost of their immense suffering. AND Whereas, the Licensing Authority is of the opinion that no amount of excuse could justify such irresponsible behaviour and irregular activities of the Licensee towards the consumers and thus calls for major punishment like cancellation of the license; Now, therefore, in exercise of powers conferred by sub-paragraph (2) of Paragraph-6 of the Tripura Cooking Gas (Licensing, Control and Maintenance of Supplies) Order, 1985, the undersigned in the capacity of Licensing Authority, hereby cancels the license bearing No. 22/LPG/DCS/2002 of Smti. Ratna Das, Proprietor, M/s Neermahal Gas Agency with immediate effect for contravention of the provisions of sub-paragraph (4) of paragraph-3 and sub-paragraph (8) of paragraph-3 of the Tripura Cooking Gas (Licensing, Control and Maintenance of Supplies) Order, 1985 read with sub-paragraph (6) of paragraph-4 of the Tripura Cooking Gas (Licensing, Control and Maintenance of Supplies) Directions, 1986 [as amended by the Tripura Cooking Gas (Licensing, Control and Maintenance of Supplies)(Amendment) Directions, 2005). (T.K. Das) Director Food, Civil Supplies & Consumer Affairs. (Licensing Authority) The said order is under challenge in this writ petition. 7. The petitioner has asserted that the report of the Deputy Collector & Magistrate was never supplied to her and for that reason, the entire proceeding stands vitiated. According to the petitioner, even though, the petitioner was consumers-friendly, for certain mitigating circumstances and at some points of time, particularly, during pandemic situation, the supply chain was a little disturbed. Considering the circumstances, according to the petitioner, the decision of the licensing authority is disproportionately harsh. Moreover, the entire inquiry was carried out behind her back. The petitioner has asserted further that the order dated 16.07.2020 [Annexure-7 to the writ petition] suffers the vice of being issued in contravention of para-3(4) of the Tripura Cooking Gas (Licensing, Control and Maintenance of Supplies) Order, 1985 and para-3(8) of the Tripura Cooking Gas (Licensing, Control and Maintenance of Supplies) Order, 1985 read with the provisions of para-4(6) of the Tripura Cooking Gas (Licensing, Control and Maintenance of Supplies) Directions, 1986 as amended by Tripura Cooking Gas (Licensing, Control and Maintenance of Supplies) [Amendment], Directions 2005. The petitioner has admitted that from reading of those provisions, it would transpire and reveal that every dealer has obligation to maintain adequate supply of cooking gas at his/her business premises. The petitioner has further stated that the showcause notice does not speak of not maintaining adequate stock. Para-3(8) of Tripura Cooking Gas (Licensing, Control and Maintenance of Supplies) Order, 1985 stipulates that every licencee has been enjoined with the obligation to comply with such directions or other specific directions issued in writing to him/her. It has been asserted by the petitioner that no power has been vested upon the licensing authority under para-4(6) of Tripura Cooking Gas (Licensing, Control and Maintenance of Supplies) Direction, 1986 as amended in the year 2005 for cancellation of license for any breach thereof. It has been asserted by the petitioner that no power has been vested upon the licensing authority under para-4(6) of Tripura Cooking Gas (Licensing, Control and Maintenance of Supplies) Direction, 1986 as amended in the year 2005 for cancellation of license for any breach thereof. However, the petitioner has stated that licensing authority has been conferred with the power for cancellation of licence under Tripura Cooking Gas (Licensing, Control and Maintenance of Supplies) Order, 1985. The petitioner has strangely stated that Section 3 of the Essential Commodities Act, 1955 does not provide any power on the state government authorizing cancellation of licence and hence, the order dated 16.07.2020 [Annexure-7 to the writ petition] is wholly unsustainable. The petitioner has in para-3.12 of the writ petition stated that the licence has been cancelled to honour the statement that the Chief Minister has made at Agartala on 08.07.2020 declaring that the petitioner’s license has been cancelled. It has been stated that by issuing the order dated 16.07.2020, the respondents have acted arbitrarily, infringed the right to callings and taken away the property, meaning the licence without following the procedure of law. 8. The respondents have by filing the reply stated that the petitioner has thwarted the statutory provisions as laid down in the orders and directions to subserve her individual interest. In terms of the Tripura Cooking Gas (Licensing, Control and Maintenance of Supplies) Order, 1985, every dealer has to ensure that he/she has adequate stock of cooking gas in the business premises including the place of storage at all times. 9. In the reply, as it is noticed by this Court, new allegations have been levelled. Allegations of selling the gas cylinders in the open market by depriving the registered customers has been seriously made. Hence this allegation, this Court will not take into consideration, this allegation was not part of the showcause notice. The villagers who are registered with the petitioner made complaints to the Chief Minister, Tripura when he had visited one village called Srimantapur on 29.05.2020. In sequel to those complaints, an inquiry was instituted for verifying the allegations. It has been stated in the reply as follows : “But in reality on earlier occasions also the petitioner by way of her irregular and negligence [sic.] activities deprived the consumers from LPG cylinders in regular manner. The petitioner in order to cater the requirement of 14,774 nos. It has been stated in the reply as follows : “But in reality on earlier occasions also the petitioner by way of her irregular and negligence [sic.] activities deprived the consumers from LPG cylinders in regular manner. The petitioner in order to cater the requirement of 14,774 nos. active consumers of her agency smoothly was supposed to lift on an average minimum 8,864 nos. cylinders (60% of total active consumers) per month. But as per official records, status of lifting of LPG cylinder by the petitioner during the last one year period from July 2019 to June 2020 was as follows : July, 2019: 27%, August, 2019: 37%, September, 2019: 27%, October, 2019: 33%, November, 2019: 29%, December, 2019: 8%, January, 2020: 31%, February, 2020: 27%, March, 2020: 29%, April, 2020: 38%, May, 2020:29% and June, 2020: 29%. However, to extend the reasonable opportunity to the petitioner to state her case, she was directed to appear for personal hearing and during personal on 15/07/2020, the petitioner admitted all the allegations directly or indirectly. So, taking into consideration of the reply of the petitioner to the show cause notice as well as her submission made during personal hearing, the Licensing Authority has convinced without an iota of doubt that the petitioner has failed measurably in lifting and distribution of domestic LPG cylinders equivalent to minimum 60% bench mark of the total consumers of the Agency and effecting delivery of cylinders on home delivery mode to all the consumers specially to those living in the border areas at the cost immense suffering of the consumers and cancelled the license bearing No.22/LPG/DCS/2002 of the petitioner vide order dated 16/07/2020 by making necessary alternative arrangements for distribution of LPG cylinders to the consumers through IOCL. It is to mention here that it has been proved beyond doubt that the petitioner has been callous, indifferent and negligent in supplying essential commodity like cooking gas to the consumer and thus put them in utter inconvenience. So, no breach of principle of natural justice has been committed by the Respondent No.3 in issuing the cancellation order. Moreover, to cancellation of the license of the petitioner vide order dated 16/07/2020 has been issued after observing all statutory provisions like causing proper enquiry, issuing of shoe cause notice and taking personal hearing in the larger interest the consumers is just and proper.” [Emphasis added] 10. Moreover, to cancellation of the license of the petitioner vide order dated 16/07/2020 has been issued after observing all statutory provisions like causing proper enquiry, issuing of shoe cause notice and taking personal hearing in the larger interest the consumers is just and proper.” [Emphasis added] 10. In the reply, the respondents have revealed that earlier a specific police case was registered against the proprietor of the petitioner at the instance of Inspector [Food], Sonamura being Sonamura P.S. Case No.2014/SNM/177 registered in 14.10.2014. The petitioner has flouted the rules and guide lines several times but all the time, a lenient view was taken. The respondents had denied that the inquiry conducted by the Deputy Collector & Magistrate had been carried out behind the back of the petitioner or otherwise prejudicial to the petitioner. The respondents have categorically stated that the excuses given by the petitioner are all baseless or unsustainable as the supply chain is maintained by the employees of the petitioner. From the information as regards the lifting of the gas cylinders, it has transpired that the petitioner was deliberately lifting inadequate gas cylinders. Consequently, the registered customers had suffered harassment and they did not get home delivery of the cylinders. 11. The respondents have categorically stated in para-16 of the reply that in the showcause notice, the finding of the inquiry report of the Sub-Divisional Magistrate, Sonamura has been elaborately extracted. Beyond those finding, no material from the said inquiry report has been utilized by the licensing authority. The petitioner has failed to maintain the customers friendly business approach by making home delivery etc. The licence of the petitioner has been cancelled by the licensing authority for contraventions of the provisions of sub-para-4 of para-3 of the Tripura Cooking Gas (Licensing, Control and Maintenance of Supplies) Order, 1985 as the petitioner had failed to maintain adequate stock. Further, the petitioner was not complaint of the direction of the licensing authority, issued under sub-para-6 of para-4 of Tripura Cooking Gas (Licensing, Control and Maintenance of Supplies) Directions, 1986 as amended upto 2005. The licensing authority has powers, being the competent authority, to cancel a license for violation of rules after affording an opportunity of being heard. 12. Further, the petitioner was not complaint of the direction of the licensing authority, issued under sub-para-6 of para-4 of Tripura Cooking Gas (Licensing, Control and Maintenance of Supplies) Directions, 1986 as amended upto 2005. The licensing authority has powers, being the competent authority, to cancel a license for violation of rules after affording an opportunity of being heard. 12. The petitioner has filed a rejoinder to contend that in the licence [Annexure-1 to the writ petition] there had been no condition to maintain adequate stock of cooking gas and as such, for breach of condition, no action can be taken against the petitioner. 13. The [criminal] case that has been referred by the respondents had ended in acquittal of the petitioner’s proprietor. Therefore, on that basis, no adverse action can be taken against the petitioner. The petitioner has also stated that for introduction of Ujjawala there had been a sudden hike in the number of registered customers. The petitioner has given the number, which shows that increase was not abnormal. The registered customers were 14,178 nos. in the year 2019 and it had increased to 14,483 during the relevant period. Thus, the petitioner’s analogy may not appear to a prudent person to have serious ramification against the allegations brought against her. 14. Mr. D. Bhatacharya, learned G.A. appearing for the respondents has contended that this writ petition cannot be entertained inasmuch as in view of the principle as settled in catena of decisions by the apex Court that when there is efficacious and adequate remedy available the aggrieved person, he or she may not be allowed to invoke the jurisdiction as conferred by Article 226 of the Constitution of India. 15. In this respect, Mr. Somik Deb, learned senior counsel has contended that the apex Court has taken a liberal approach as regards invoking the jurisdiction under Article 226 of the Constitution in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Others reported in (1998) 8 SCC 1 . Mr. Deb, learned senior counsel has not disputed the existence of remedy of appeal. But he has stated that in certain circumstances, even if, there is existence of the alternative remedy, the aggrieved citizen may approach the constitutional court under Article 226 of the Constitution of India. In Whirlpool Corporation (supra), the apex court had occasion to observe as follows : “14. But he has stated that in certain circumstances, even if, there is existence of the alternative remedy, the aggrieved citizen may approach the constitutional court under Article 226 of the Constitution of India. In Whirlpool Corporation (supra), the apex court had occasion to observe as follows : “14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for “any other purpose”. 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field. 16. Rashid Ahmed v. Municipal Board, Kairana [ AIR 1950 SC 163 : 1950 SCR 566 ] laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting writs. This was followed by another Rashid case, namely, K.S. Rashid & Son v. Income Tax Investigation Commission [ AIR 1954 SC 207 : (1954) 25 ITR 167 ] which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This was followed by another Rashid case, namely, K.S. Rashid & Son v. Income Tax Investigation Commission [ AIR 1954 SC 207 : (1954) 25 ITR 167 ] which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, “unless there are good grounds therefor”, which indicated that alternative remedy would not operate as an absolute bar and that writ petition under Article 226 could still be entertained in exceptional circumstances. 17. A specific and clear rule was laid down in State of U.P. v. Mohd. Nooh [ AIR 1958 SC 86 : 1958 SCR 595 ] as under: “But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies.” 18. This proposition was considered by a Constitution Bench of this Court in A.V. Venkateswaran, Collector of Customs v. Ramchand Sobhraj Wadhwani [ AIR 1961 SC 1506 : (1962) 1 SCR 753 ] and was affirmed and followed in the following words: “The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court.” 19. Another Constitution Bench decision in Calcutta Discount Co. Ltd. v. ITO, Companies Distt. I [ AIR 1961 SC 372 : (1961) 41 ITR 191 ] laid down: “Though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts will issue appropriate orders or directions to prevent such consequences. Writ of certiorari and prohibition can issue against the Income Tax Officer acting without jurisdiction under Section 34, Income Tax Act.”” [Emphasis added] 16. On that issue, Mr. D. Bhattacharya, learned G.A. has referred a decision of the apex Court in State Bank of India and Others v. Narendra Kumar Pandey reported in (2013) 2 SCC 740 where the apex Court has quite succinctly observed as follows: “25. The High Court, in our view, under Article 226 of the Constitution of India was not justified in interfering with the order of dismissal passed by the appointing authority after a full-fledged inquiry, especially when the Service Rules provide for an alternative remedy of appeal. It is a well-accepted principle of law that the High Court while exercising powers under Article 226 of the Constitution does not act as an appellate authority. Of course, its jurisdiction is circumscribed and confined to correct an error of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of the principles of natural justice. In SBI v. Ramesh Dinkar Punde [ (2006) 7 SCC 212 : 2006 SCC (L&S) 1573] this Court held that the High Court cannot reappreciate the evidence acting as a court of appeal. We have, on facts, found that no procedural irregularity has been committed either by the Bank, presenting officer or the inquiring authority. Disciplinary proceedings were conducted strictly in accordance with the Service Rules.” [Emphasis added] 17. Mr. Somik Deb, learned senior counsel has submitted that the jurisdiction under Article 226 of the Constitution should usually not be denied to a citizen and the executive action be scrutinized on the settled proposition of law. Disciplinary proceedings were conducted strictly in accordance with the Service Rules.” [Emphasis added] 17. Mr. Somik Deb, learned senior counsel has submitted that the jurisdiction under Article 226 of the Constitution should usually not be denied to a citizen and the executive action be scrutinized on the settled proposition of law. In State of A.P. v. S. Sree Rama Rao reported in AIR 1963 SC 1723 , the apex Court has observed that where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion which the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence especially when the charged officer had not participated in the inquiry and had not raised the grounds urged by him before the High Court by the inquiring authority. The High Court cannot function as an appellate court under Article 226 of the Constitution of India, but can exercise its power of judicial review where any finding has been returned without evidence or the law has been perversely applied. 18. In L.K. Verma v. HMT Limited and Another reported in (2006) 2 SCC 269 , the apex Court has observed as under : “20. The High Court in exercise of its jurisdiction under Article 226 of the Constitution, in a given case although may not entertain a writ petition inter alia on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. Despite existence of an alternative remedy, a writ court may exercise its discretionary jurisdiction of judicial review inter alia in cases where the court or the tribunal lacks inherent jurisdiction or for enforcement of a fundamental right or if there has been a violation of a principle of natural justice or where vires of the Act is in question. In the aforementioned circumstances, the alternative remedy has been held not to operate as a bar. (See Whirlpool Corpn. v. Registrar of Trade Marks [ (1998) 8 SCC 1 ], Sanjana M. Wig v. Hindustan Petroleum Corpn. In the aforementioned circumstances, the alternative remedy has been held not to operate as a bar. (See Whirlpool Corpn. v. Registrar of Trade Marks [ (1998) 8 SCC 1 ], Sanjana M. Wig v. Hindustan Petroleum Corpn. Ltd. [ (2005) 8 SCC 242 ] and State of H.P. v. Gujarat Ambuja Cement Ltd. [ (2005) 6 SCC 499 ])” [Emphasis added] 19. Mr. Somik Deb, learned senior counsel has raised a unique point. In the similar circumstances, the Gauhati High Court in M/s Nishi Gas Agency v. State of Assam and Four Others [judgment dated 17.09.2018 delivered in WP(C)No.2727/2018] has referred to the Revised Marketing Discipline Guidelines, 2015 for LPG Distributorship which has provided under Chapter-5, Clause-5 as follows: 15. The LPG Order 2000 dated 26.04.2000 was originally issued by the Ministry of Petroleum and Natural Gas and subsequently republished in G.O.Ms No.155, Cooperation, Food and Consumer Protection dated 20.07.2000. The said Order was issued by the Central Government in exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955 and the same extends to the whole of India. The said Order includes the Public Distribution System (PDS) and is defined in Clause 2(l) as the system of distribution, marketing or selling of Liquefied Petroleum Gas by a Government Oil Company at the Government controlled or declared price through a distribution system approved by the Central Government or a State Government. The said LPG Order 2000 stipulates the restrictions of storage, transport, unauthorized possession, supply. In addition to that there are specific stipulations to display stock and price of LPG, maintenance of register account book by the distributor and Clause 13 of the said Order LPG 2000 stipulates the power of entry, search and seizure. Clause 14 prescribes the overriding effect of the Order. For the sake of convenience, Clause 13 and Clause 14 are reproduced herein below: '13. Clause 14 prescribes the overriding effect of the Order. For the sake of convenience, Clause 13 and Clause 14 are reproduced herein below: '13. Power of entry, search and seizure: (1) Any Officer of the Central or the State Government not below the rank of Inspector duly authorized by a general or a special order, by the Central Government or the State Government, as the case may be or any officer of a Government Oil Company not below the rank of Sales Officer, authorized by the Central Government, may, with a view to securing due compliance of this order or any other order made thereunder: (a) Stop and search any vessel or vehicle used or capable of being used for the transport or storage of any petroleum product, (b) enter and search any place, (c) seize stocks of liquefied petroleum gas along with container and /or equipments, such as cylinders, gas cylinder valves, pressure regulators and seals in respect of which he has reason to believe that a contravention of this Order has been, or is being, or is about to be made. (2) The sales officer of a Government Oil Company shall be authorized to secure compliance of this order by the distributors appointed under the public distribution system and or by the consumer registered by them. 14. Overriding effect of the Order: The provisions of this Order shall have overriding effect notwithstanding anything contained in any Order made by a State Government or a Union Territory Administration.’ 16. In pursuance of the said Clause 13 (1), the Central Government vide its notification G.O.Ms.No.295, C, F & CP Dept. dated 15.12.2000 authorized all Officers of Civil Supplies and Consumer Protection Department not below the rank of Assistant Commissioner of Civil Supplies including the Assistant Commissioner (Inspection) of Civil Supplies and Central Government Officers of other Departments including Officer of Revenue Department not below the rank of Tahsildar etc. The Government of Assam vide notification No.FSA 3572001/153 dated 19.02.2001 authorized any Food and Civil Supplies Officer of the State Government not below the rank of Inspector, Food and Civil Supplies Department in pursuance of Clause 13 (1) of the LPG Order 2000 to exercise the power (entry, search and seizure) in their respective jurisdiction under Clause 13 of the said Order. 17. 17. Revised Marketing Discipline Guideline, 2015 for LPG distributorship under Chapter-5, Clause-V stipulates as follows: 'v) Under existing laws, Control Orders of various authorities of Central Government/State Government– in addition to Oil Company Officers – are empowered to carry out checks of the Distributorship for determining and securing compliance with such laws/Control Order. If any 'malpractice or irregularity' is established by such authorities after checking, the same would also be taken as a 'malpractice or irregularity' under these guidelines and prescribed punitive action would be taken by the Oil Company, on receipt of advice from such authority. In the meantime, if the oil company on its own detects a malpractice/irregularity of the same nature; action is to be taken under MDG independent of the case pending with the Government Authority for the purpose of counting of the number of irregularities under the particular category.’ 18. The said Guideline 2015 under Chapter 3 prescribes the action on the LPG distributors for any irregularities which are classified as critical irregularities, major irregularities, minor irregularities and the punishment and the quantum of compensation to the customers. From the affidavit-in-opposition of respondent No.5 it is seen that the Guideline 2015 is effective since the year 2017. In other words, the said Guideline 2015 is a complete Code to enforce discipline amongst LPG distributorship keeping in view the public convenience. The LPG Order 2000 is the Order in exercise of the power conferred by the Section 3 of the Essential Commodities Act, 1955 and the same is an Order of the Central Government. On the basis of the delegation under section 5 of the Essential Commodities Act, 1955 the State Government is also authorized with the powers under the Order under Section 3 of the Essential Commodities Act, 1955 vide S.O. 682 (E) mentioned hereinabove. To enforce the various Orders to control price and supply/distribution of Essential Commodities, the ATA (L & C) Order 1982 came into force vide notification No.SDA96/80/Pt. dated 22.06.1982. Clause 14 of the said LPG Order 2000 is specific that the provisions of the Order shall have overriding effect notwithstanding anything contained in any order made by a State Government or by a Union Territory Administration. 19. In State (NCT of Delhi) v. Sanjoy reported in (2014) 9 SCC 772 the effect of a non obstante clause in a legislative device was held as follows: '63. 19. In State (NCT of Delhi) v. Sanjoy reported in (2014) 9 SCC 772 the effect of a non obstante clause in a legislative device was held as follows: '63. It is well known that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions.’ 20. If the said overriding effect of LPG Order 2000 is taken into consideration, the penal provision of any Order under section 3 of the Essential Commodities Act, 1955 made by a State Government, becomes redundant so far distribution of Liquefied Petroleum Gas is concerned even if it is covered under Public Distribution System. 21. The cancellation of license as stipulated under Clause 11 of ATA (L & C) Order 1982 amounts to cancellation of the license issued by the Central Government Oil Company to the LPG distributors under it. The Revised Marketing Discipline Guideline categorizes various irregularities as hereinabove stated and for such irregularities separate punitive actions are stipulated in the said Guideline considering the gravity of the offence. From the affidavit-in-opposition filed by the respondent No.5 it is found that as per the Revised Marketing Discipline Guideline, 2015 for LPG distributorship with effect from September, 2017, the irregularities done by the petitioner agency falls under Clause 2.2.10 under the heading Major Irregularities and the penalty is specified under Clause 3.2.(i) of the said Guideline which is fine equivalent to 20% average monthly distributor’s commission. Under such circumstances the action of the respondent No.4 for cancellation of the license of the petitioner agency is totally contradictory which in my considered opinion cannot be accepted on the enlarged principles of equity and under Article 14 of the Constitution of India. Had there been no such non obstante clause in Clause 14 referred hereinabove then it would have been a separate issue but introduction of such non obstante clause is with the purpose for removing such contrary provision viz the Clause 11 (Suspension and Cancellation of Licence) of the ATA (L & C) Order 1982 so far LPG distributorship distributing LPG under Public Distribution System is concerned. 22. 22. In the light of the said discussion I am of the considered opinion that the power of the officials as authorized under the ATA (L & C) Order 1982 must be confined to the extent of the one authorized by the notification No.FSA 3572001/153 dated 19.02.2001, i.e., to the extent of entry, search and seizure under Clause 13(1) of the LPG Order 2000. It would not be out of place to mention here that in the LPG Order 2000, Clause 13(2) specifically authorizes the Sales Officers of a Government Oil Company to secure compliance of the said LPG Order 2000 by the distributor appointed under the Public Distribution System. The LPG, under the ATA (L & C) Order 1982 is an item which falls under Public Distribution System and as such petitioner is insulated from the action of imposing penalty by the State Government officers so authorized under the said notification dated 19.02.2001 and also under the ATA ( L & C) Order 1982. However, the said officers are authorized as hereinabove stated with the power of entry, search and seizure and if there is any prima-facie proof of any irregularity then such officers are authorized to inform the Sales Officers of the Government Oil Company as stipulated under Chapter 5, clause-v of the Revised Marketing Discipline Guideline, 2015 which has its statutory force for imposing penalty. 23. In view of the discussion both the writ petitioners are allowed. The impugned show cause notice under Memo No. BSM 65/2018/32-33 dated 19.04.2018 suspending the Trade Licence bearing No.375 standing against the petitioner’s LPG distributorship under name and style M/S Nishi Gas Agency, Bilasipara and the subsequent show cause notice for cancellation of said Trade Licence under Memo No.BSM 85/2018/227 dated 05.07.2018 which is consequential to the show cause notice dated 19.04.2018 both issued by the Sub-Divisional Officer (Civil), Bilasipara in the district of Dhubri are set aside and quashed along with the Suspension Order. As a result, the said Trade Licence No.375 is directed restored back by the respondent No.4. However, the respondent No.4 shall inform the concerned Sales Officer of IOCL, respondent No.5 about the irregularities so detected by the authorized officials under the ATA (L & C) Order 1982 following which necessary action may be initiated by the respondent No.5 as per law.” [Emphasis added] 20. Mr. However, the respondent No.4 shall inform the concerned Sales Officer of IOCL, respondent No.5 about the irregularities so detected by the authorized officials under the ATA (L & C) Order 1982 following which necessary action may be initiated by the respondent No.5 as per law.” [Emphasis added] 20. Mr. Deb, learned senior counsel has contended that under the existing control orders the Central Government and State Government in addition to Oil Company Officers, are empowered to carry out vigil on the distributorship for securing compliance of law/control orders. If any ‘malpractice or irregularity’ is established by such authorities after verification, the same would be taken as ‘malpractice’ or ‘irregularity’ under the guidelines, and the prescribed purative action can be taken by the oil company in that verification on receipt of the advice from such authority. In the meantime, if the oil company on its own detects malpractice or irregularity of the same nature, action is to be taken under MDG, independent of the case pending with the government authority. What this Court has noticed is that the guidelines, 2015 have been replaced by the guidelines, 2018 w.e.f. 01.11.2018. 21. In the new guidelines, 2018 it has been clearly provided that in respect of all cases of irregularities, a showcause notice will be issued by the concerned Area Manager/Territory Manager/Regional Manager to the distributor within thirty days from the date of report of inspection/investigation indicating the irregularities. Those authorities will take an appropriate measure on providing reasonable time for reviewing the deficiency depending on the nature of short- comings. 22. What Mr. Deb, learned senior counsel has asserted is that the Marketing Discipline Guideline (MDG, in short) whether it is of 2015 or 2018, it has derogate the authorities under Tripura Cooking Gas (Licensing, Control and Maintenance of Supply) Order, 1965. In the said Tripura Cooking Gas (Licensing, Control and Maintenance of Supply) Order, 1965, it has been provided that every dealer shall take all reasonable steps to ensure that he/she has adequate stock and cooking gas in the business premises at all times. Indents be placed for all nominated supply points 48 hrs. in advance, as per the indenting policies of the oil companies. 23. Mr. Deb, learned senior counsel has in order to buttress his contention referred a few decisions of the apex court, such as, District Mining Officer and Others v. Tata Iron and Steel Co. Indents be placed for all nominated supply points 48 hrs. in advance, as per the indenting policies of the oil companies. 23. Mr. Deb, learned senior counsel has in order to buttress his contention referred a few decisions of the apex court, such as, District Mining Officer and Others v. Tata Iron and Steel Co. and Another reported in (2001) 7 SCC 358 , Hindustan Times and Others v. State of U.P. and Another reported in (2003) 1 SCC 591 , State of Jharkhand and Others v. Jitendra Kumar Srivastava and Another reported in (2013) 12 SCC 210 . These decisions have been pressed into service to illustrate the effect of repugnancy. It has been observed there that provision of the central legislation would prevail. There cannot be any amount of doubt in this regard. The fundamental question that emerges for examination here is whether the Marketing Discipline Guidelines, 2015 or 2018 has the force of law to bring about the doctrine of repugnancy as provided under Article 254 of the Constitution. The constitutional provision clearly provides in-consistency made by laws by parliament and laws by the legislature of states, if any provision of a law made by a legislature of a state is inconsistent with any provision of law made by parliament which parliament is competent to enact or to any provision of any existing law with respect to one of the matters enumerated in the concurrent list, then, subject to the provisions of clause(2) of Article 254, the law made by parliament whether the law made before or after the law made by the legislature of a state, or, as the case may be, the existing law shall prevail and the law made by the legislature of a state, shall, to the extent of repugnancy, be void. 24. In M/s Nishi Gas Agency (supra), the Gauhati High Court, has as has been reproduced, observed having regard to guidelines, 2014 which provides that provisions of this order shall have overriding effect notwithstanding anything contained in any order made by a state government or union territory (UT) administration. Thus, it has been contended that punitive can only be taken by the authorized officers of a government oil companies to secure compliance of he said LPG order, 2000. Thus, it has been contended that punitive can only be taken by the authorized officers of a government oil companies to secure compliance of he said LPG order, 2000. The Gauhati High Court has further observed that the Marketing Discipline Guidelines, 2015 has the statutory force in the matters relating to imposing penalty. 25. Mr. Somik Deb, learned senior counsel has also referred a decision of the apex court in K.T. Plantation Private Limited and Another v. State of Karnataka reported in (2011) 9 SCC 1 where it has been held that the importance of, as constituent of basic structure of constitution, the rule of law, as a concept finds no place in the constitution, but has been characterized as basic feature of the constitution which cannot be abrogated or destroyed even by parliament and in fact, binds parliament. Rule of law is one of the most important aspect of the doctrine of basic structure. Rule of law affirms parliament supremacy, while at the same time denies the parliaments absolute sovereignty over the constitution. 26. In reply, Mr. D. Bhattacharya, learned G.A. has emphatically stated that the petitioner did not raise any question relating to the LPG order dated 26.04.2000. Hence, in a matter of judicial review the petitioner may not be allowed to raise such issue, as the respondents did not get any opportunity to make the reply. Mr. Bhattacharya, learned G.A. has referred Order 6 of Tripura Cooking Gas (Licensing, Control, Maintenance and Supplies), Order, 1985. Order 6 provides authority to the licensing authority to suspend or cancel a licence in terms of the express provisions. Mr. Bhattacharya, learned G.A. has also asserted that Order 7 provides that any person aggrieved by an order passed by a Director or licensing authority as the case may be under paras- 5 or 6 may, within thirty days, of such order, prefer an appeal to the Secretary, Government of Tripura, Food and Civil Supplies Department. For existence of such comprehensive remedy of appeal, this writ petition cannot be entertained inasmuch as the due opportunity was afforded to place the defence by the petitioner on the allegations those were notified to him. Mr. Bhattacharya, learned G.A. has submitted that even though, the inquiry report by the Sub-Divisional Magistrate, Sonamura was not furnished to the petitioner but all contents of that inquiry report has been extracted in the showcause notice dated 04.06.2020. Mr. Bhattacharya, learned G.A. has submitted that even though, the inquiry report by the Sub-Divisional Magistrate, Sonamura was not furnished to the petitioner but all contents of that inquiry report has been extracted in the showcause notice dated 04.06.2020. Therefore, there is no circumvention of the principle of natural justice. So far the question of repugnancy is concerned, this cannot be adjudicated by this Court inasmuch as the relevant provisions of Tripura Cooking Gas (Licensing, Control, Maintenance and Supplies), Order, 1985 has not been challenged. Not only that the petitioner has asserted that the Tripura Cooking Gas (Licensing, Control, Maintenance and Supplies), (Amendment) Directions, 2005 has not been assailed, but the validity of the impugned order dated 16.07.2020 [Annexure-7] has been challenged on the guidelines, as referred before. This is an innovative way of raising pleas without taking any responsibility. There is no unconstitutionality either by way of doctrine of repugnancy or for lack of competence in framing such law. Hence, this Court, according to Mr. Bhattacharya, learned G.A., would refuse to examine the validity of the Tripura Cooking Gas (Licensing, Control, Maintenance and Supplies), Order, 1985. 27. Mr. Bhattacharya, learned G.A. has pressed in service a decision of the apex court in Narendra Kumar Pandey (supra) where it has been quite succinctly observed that the power of judicial review cannot be extended to arrive at an independent finding by reappraising evidence. In this case, we have noted the inquiry has been carried out by affording the reasonable opportunity of defence and later on, the licensing authority has passed the impugned order cancelling the license. Even, personal hearing has been allowed. 28. This Court is inclined not to interfere the finding of the licencing authority but in view of overriding effect of the Guideline, 2014 and the LPG order, 2000, this Court is of the view that the licensing authority would have forwarded all papers on completion of inquiry to the oil company for passing the appropriate order for serious irregularities as surfaced in the inquiry. Thus, the order of cancellation of licence dated 16.07.2020 [Annexure-7] is interfered with and set aside for a limited purpose. That will not allow the petitioner to operate the business of cooking gas forthwith. The concerned oil company, which is not even the party in the proceeding will decide the punitive action for the proved irregularity committed by the petitioner. Thus, the order of cancellation of licence dated 16.07.2020 [Annexure-7] is interfered with and set aside for a limited purpose. That will not allow the petitioner to operate the business of cooking gas forthwith. The concerned oil company, which is not even the party in the proceeding will decide the punitive action for the proved irregularity committed by the petitioner. Such decision be taken by the oil company i.e. Indian Oil Company (IOC) Ltd. within 30(thirty) days from the date of receiving all papers relating to inquiry and the finding thereof from the licensing authority. It is made absolutely clear that no further opportunity of hearing is required to be afforded to the petitioner. As this court is unaware whether any action has been taken by the Oil Company, if the Oil Company has taken any action on their own inquiry or on the report of the licensing authority, no further action will be required to be taken. The decision of the Oil Company as regards the punitive action shall prevail. In terms of the above, this writ petition is allowed to the extent as indicated above. There shall be no order as to cost.