Late Brij Kishore vs Assit. Commissioner (South), ...
2010 Latest Caselaw 5692 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
54
+              W.P.(C) 4543/2010 & CM APPL 9012/2010

      LATE BRIJ KISHORE
      THROUGH VISHNU SAXENA                          ..... Petitioner
                    Through : Mr. V. Shrivastav, Advocate.

                         versus


      ASSISTANT COMMISSIONER (SOUTH),
      DEPARTMENT OF FOOD & SUPPLY AND ANR ..... Respondents
                   Through Ms. Aruna Tiku, Addl. Standing counsel.

      CORAM: JUSTICE S. MURALIDHAR

      1. Whether reporters of local paper may be allowed
         to see the judgment?                                   No
      2. To be referred to the reporter or not?                 Yes
      3. Whether the judgment should be referred in the digest? Yes


                                  ORDER

14.12.2010

1. The Petitioner is aggrieved by the orders dated 18 th March 2009 and 28th

April 2010 passed by the first Appellate Authority in Appeal No.

36/AS/2008 and Review Petition No. JS(S)-17/2009 (FPS) respectively.

2. The Petitioner is a holder of a fair price shop („FPS‟) licence No. 6523

which was issued in the name of his father late Shri Brij Kishore. It is

stated that on the demise of his father the licence was transferred in the

Petitioner‟s name. The FPS is located in Circle No. 33 (Saket). The

Petitioner claims to be maintaining records, stocks and sales registers as per

the provisions of the Delhi Specified Articles (Regulation of Distribution)

Order, 1891 (hereinafter „the DSA Order‟) as well as Public Distribution

System (Control) Order, 2001 (hereinafter „the PDS Order‟). On 21st July

2008 an order was issued by the Assistant Commissioner (South),

Department of Food and Supply („DFS‟), Government of NCT of Delhi

(„GNCTD‟) stating that 78 Antyodaya Anna Yojana („AAY‟) card holders

attached to the Petitioner‟s FPS were found not residing at the given

addresses. Consequently by an order dated 21st July 2008 the supply of

specified food articles („SFAs‟) in respect of the said 78 cards was directed

to be stopped with immediate effect. Admittedly, the Petitioner

immediately complied with this direction.

3. On 31st July 2008 a suspension-cum-show cause notice was issued by

Respondent No. 1 to the Petitioner alleging that the Petitioner was not

running his FPS as per the DSA Order and had violated relevant provisions

of the DSA Order and the PDS Order.

4. Against the said suspension-cum-show cause notice dated 31st July 2008,

the Petitioner filed an appeal which was dismissed by the Additional

Commissioner by an order dated 18th March 2009. The Additional

Commissioner held that the bogus cards identified by the DFS had

confirmed that the individuals in whose names those cards were issued

never existed at the given addresses. It was observed that the FPS licencees

should wash off their hands on the ground that they had bonafide issued

SFAs to the said card holders. As regards the present case, it was observed

as under by the Additional Commissioner:

"whether any ghost ration card was recovered by the investigating agencies from the premises of Appellant or not is not in the knowledge of the Department, but the fact remains that Appellant has shown issue of SFAs against these ghost cards, and since these ghost card holders do not exist, the appellant has diverted highly subsidized food-grains to

open market and has thus benefitted unlawfully. Therefore, he cannot be allowed to go scot-free in the matter."

5. The Petitioner then filed a review petition which was dismissed by the

Joint Commissioner on 28th April 2010. This time it was noticed that the

Anti Corruption Branch („ACB‟) and the Central Bureau of Investigation

(„CBI‟) had recovered bogus cards from the possession of some of the FPS

outlets and that a chargesheet had been filed by the CBI against the then

Inspector, Circle No. 33, DFS as well as the Petitioner herein in the Court

of Special Judge, Patiala House Courts, New Delhi on 24th December 2009.

The order dated 28th April 2010 recorded as under:

"This is a case of conversion of BPL to AAY cards in collusion and submission of fake/forged documents in order to get the existing BPL cards converted into AAY ration cards so as to get the ration at concessional rate and misutilize the same dishonestly by selling open market at much higher rates. In view of such complicity of the licensee, the appellate authority has considered all the evidence available to him. There is no ground for review of the appellate order."

6. The Petitioner has placed on record the entire copy of the chargesheet

filed by the CBI in RC-DAI-2008-A-0039 dated 30th September 2008. It

was submitted by the learned counsel for the Petitioner that there is no

evidence to link the Petitioner with the issuance of the 78 AAY cards

where the card holders were not found at the given addresses. No such

bogus card was recovered from the Petitioner‟s premises. There was

nothing to show that the Petitioner had signed any of the application forms

on the strength of which such cards were issued. It was submitted that the

show cause notice was based on surmises and that the impugned order had

been passed without there being any evidence whatsoever. It was submitted

that even in the chargesheet apart from the bare allegation that the

Petitioner had prior knowledge of the fact that nine card holders did not

exist, there was no evidence to link the Petitioner with the issuance of such

cards.

7. Counsel for the Respondent produced records of the case. She submitted

that apart from the chargesheet filed by the CBI the only ground on which

the suspension-cum-show cause notice was issued to the Petitioner and his

FPS licence was cancelled was that he had issued SFAs against 78 cards

which were found to be bogus. She fairly stated that there was nothing on

the record, apart from the chargesheet of the CBI itself, to show that the

Petitioner had acted in connivance with the Circle Inspector who was one

of the accused in the criminal case or that the Petitioner was involved in the

preparation of any of the 78 cards.

8. The above submissions have been considered.

9. This Court finds that the chargesheet was filed by the CBI on 30th

September 2008 whereas the suspension-cum-show cause notice was

issued by the DFS to the Petitioner on 31st July 2008. This led to the

cancellation order dated 15th October 2008. There is no reference in the

said order to the chargesheet filed by the CBI. The only allegation against

the Petitioner in the cancellation order dated 15th October 2008 is that SFAs

have been issued in respect of 72 bogus AAY cards attached to the

Petitioner‟s FPS. Although it was alleged therein that the Petitioner had

violated the provisions of the DSA Order, no specific provisions thereunder

were mentioned. A reference was made to Clause 7 the PDS Order and

para 5 of the Annexure to the PDS Order. A perusal of Clause 7 shows that

it deals with the entitlement of ration card holders to essential commodities.

It state that the FPS owners should not retain ration cards after the supply

of essential commodities. Para 5 of the Annexure to the PDS Order sets out

the responsibilities and duties of FPS owners. Those include sale of

essential commodities as per entitlement of the ration card holders, display

of information on a notice board at a prominent place including list of BPL

and AAY card holders, maintenance of the stock register, issue of sale

register and maintenance of records etc. There is no specific responsibility

on the FPS licence holder to actually verify the genuineness of the AAY

cards produced for availing of the ration. As regards the cancellation of

the licence, Clause 7 of the DSA Order talks of cancellation upon

conviction of the FPS holder under Section 3 of the Essential Commodities

Act, 1955.

10. A perusal of the Appellate Authority‟s order dated 18th March 2009

shows that it proceeded purely on surmises. The said order acknowledges

that whether any of the bogus ration cards were recovered from the

premises of the Petitioner or not was not in the knowledge of the DFS. The

presumption was that since those card holders did not exist, the Petitioner

must have diverted the subsidized food-grains issued against those cards to

the open market and must have benefited unlawfully. However, there is no

material on record to substantiate such a conclusion.

11. This Court finds that there was no material on the basis of which the

Petitioner‟s FPS licence could have been cancelled. The role of the

Petitioner in issuance of any of the cards where the card holders have been

found not residing on the addresses given has not been established at all.

Also, none of the cards were recovered from the Petitioner‟s premises.

12. The chargesheet filed by the CBI cannot obviously be relied upon by

the DFS for the cancellation of the licence as that was a subsequent

development. In any event, this Court cannot examine whether the CBI‟s

chargesheet in fact makes out a case against the Petitioner or not. That

obviously will be decided in separate proceedings. It is clarified that

nothing said in this order is intended to influence the proceedings arising

from the filing of the chargesheet by the CBI. A decision thereon will be

taken by the criminal court independent of the present order. It is further

clarified that in the event the Petitioner is convicted in the criminal case, it

will be open to the DFS to invoke Clause 7 of the DSA Order to cancel the

licence of the Petitioner.

13. For the aforementioned reasons, this Court finds that the suspension-

cum-show cause notice dated 31st July 2008, the consequential order dated

15th October 2008, the appellate order dated 18th March 2009 and the

impugned order dated 28th April 2010 dismissing the Petitioner‟s review

petition are all unsustainable in law and they are set aside as such.

14.The writ petition is allowed in the above terms, but in the circumstances,

with no order as to costs. The pending application is also disposed of.

S.MURALIDHAR, J DECEMBER 14, 2010 ak