M/S Jai Ambey Store vs Govt. Of Nct Of Delhi & Ors.
2011 Latest Caselaw 3174 Del

43
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     *         IN THE HIGH COURT OF DELHI AT NEW DELHI

+        W.P.(C) 4647/2011 & CM No.9430/2011 (for stay)

         M/S JAI AMBEY STORE                                 ..... Petitioner
                       Through:          Mr. Pardeep Gupta & Mr. Keshav
                                         Kumar Choudhary, Advocates.

                                      Versus

         GOVT. OF NCT OF DELHI & ORS.               ..... Respondents
                       Through: Ms. S. Fatima, Adv. for Ms. Anjana
                                 Gosain, Adv. for GNCTD.
         CORAM:
         HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

                                   ORDER

% 07.07.2011

1. The writ petition impugns the order dated 16th June, 2011 of the

Appellate Authority, Department of Food, Supplies & Consumer Affairs,

Govt. of NCT of Delhi dismissing the appeal of the petitioner against the

order dated 18th January, 2011 of the Assistant Commissioner cancelling the

authorization/license granted to the petitioner for a fair price shop No.8982

in the name and style of M/s Jai Ambey Store.

2. The following facts are not in dispute.

(i) On 9th December, 2010, a raid was conducted by the officials

of the Delhi Police on the godown of one Maha Durga Shiv Shakti

Store also granted license to operate a fair price shop being no.7784.

In the said raid, gunny bags of Specified Food Articles (SFAs) meant

for distribution through the shop of the petitioner were found in the

godown of Maha Durga Shiv Shakti Store.

(ii) An inspection of the shop of the petitioner was carried out on

13th December, 2010 and in physical verification of SFAs 304 bags of

wheat and 112 bags of rice of about 50 Kgs. each were found.

(iii) A show cause notice dated 31st December, 2010 was issued to

the petitioner in which it was inter alia stated that bags of SFAs

having the markings of the fair price shop of the petitioner were

seized from the godown of Maha Durga Shiv Shakti Store; that on

inspection on 13th December, 2010 of the shop of the petitioner, the

quantity of wheat and rice found was inclusive of the supplies which

the petitioner claimed to have received on 9th December, 2010

through the vehicle which had been seized in the godown of Maha

Durga Shiv Shakti Store; that the same indicated diversion of SFA by

the petitioner with the connivance of Maha Durga Shiv Shakti Store

inasmuch as the documents of receipt of supplies on 9 th December,

2010 had been signed by the petitioner without receiving the said

goods and the petitioner had also recorded the goods in his stocks

register without the goods having been received. It was thus alleged

that the petitioner had diverted the SFAs meant for public distribution

for selling in black market and had contravened the provisions of

Delhi Specified Articles (Regulation of Distribution) Order, 1981. It

was also alleged that the petitioner had not submitted the certificates

stating that he had personally met the Head of Family of each

Consumer Card user, verified his address and ascertained the location

of his address, also in violation of the order aforesaid.

(iv) The petitioner submitted a reply dated 17th January, 2011 to the

aforesaid show cause notice denying any collusion with Maha Durga

Shiv Shakti Store and stating that the SFAs were delivered at his shop

between 12.00 to 3.00 pm and after unloading his goods, the vacant

truck left his place and it is for this reason only that in the inspection

on 13th December, 2010 no substantial deficiency in the SFAs was

found. It was however not disputed that the petitioner had not

submitted the certificate of meeting the Head of Family of each

Consumer Card user, as he was required to submit.

3. The Assistant Commissioner as aforesaid, for the reason of gunny

bags of SFAs, supplied by the Food Corporation of India (FCI) and meant

for distribution through the fair price shop of the petitioner having been

found in the godown of Maha Durga Shiv Shakti Store, concluded that the

petitioner had diverted the said SFAs in the open market and accordingly

cancelled the license of the petitioner.

4. The Appellate Authority in the order impugned held that the name of

the fair price shop of the petitioner had clearly come out in the records of

the Police relating to the raid on the godown of Maha Durga Shiv Shakti

Store, where it had been mentioned that wheat bags and rice bags having the

markings of the fair price shop of the petitioner had been found in the

godown of Maha Durga Shiv Shakti Store and the same showed the

involvement of the petitioner. It was further held that there was no other

explanation for the gunny bags meant for the shop of the petitioner being

found in the premises of Maha Durga Shiv Shakti Store and the petitioner

had not been able to explain as to how the rice and wheat bags meant for his

shop were found at the premises of another fair price shop. It was further

held that the truck carrying goods for supply to the shop of the petitioner on

9th December, 2010 having been seized in the premises of Maha Durga Shiv

Shakti Store, could not have delivered the stocks to the petitioner as claimed

by the petitioner. The Appellate Authority thus concluded that the

petitioner in the four days between the raid in the godown of Maha Durga

Shiv Shakti Store and the inspection of the shop of the petitioner appeared

to have manipulated his stocks to contend that supplies received on 9 th

December, 2010 were in his shop.

5. The star argument of the counsel for the petitioner is that while the

Appellate Authority has dismissed the appeal of the petitioner, it has

allowed the appeals of others similarly placed as the petitioner and orders in

whose favour are filed as Annexures P-10 to P-12 to the writ petition.

6. I have perused Annexures P-10 to P-12 but I am unable to find that

their cases are the same as against the petitioner. Firstly, there was no

allegation against them of non-submission of the certificate aforesaid.

Secondly, it was alleged against them also that gunny bags meant for them

were also found in the godown of Maha Durga Shiv Shakti Store but the

Appellate Authority found that their fair price shop number did not match

with the number on the gunny bags found in the godown of Maha Durga

Shiv Shakti Store. The said argument of the petitioner thus fails.

7. The counsel for the petitioner has contended that as long as in the

inspection on 13th December, 2010 of the shop of the petitioner, no

substantial deficiency in stocks was found, the license of the petitioner

ought not to be cancelled.

8. I am unable to agree. The possibility of the petitioner in the four days

between the raid in the godown of Maha Durga Shiv Shakti Store and the

inspection in his premises, making up his stocks cannot be ruled out. No

error is thus found in the inference so drawn in the impugned order.

9. The report of inspection on 13th December, 2010 of the shop of the

petitioner does not state that the stocks found were in the gunny bags

through which the supplies on 9th December, 2010 are claimed to have been

received by the petitioner at his shop and seizure whereof earlier on 9th

December, 2010 in the godown of Maha Durga Shiv Shakti Store is not

disputed. The petitioner in his reply to the show cause notice did not state

that the gunny bags bearing his fair price shop number and found in the

godown of Maha Durga Shiv Shakti Store, could not be his, inasmuch as the

gunny bags dispatched by the FCI and bearing his fair price shop number

were, in the inspection on 13th December, 2010 found in his shop.

10. Since the proceedings against the petitioner were initiated for the

reason of discovery of gunny bags of SFAs meant for the shop of the

petitioner being found in the godown of Maha Durga Shiv Shakti Store, the

only explanation which the petitioner was required to furnish was of the

same and which has not been furnished either before the Department or first

Appellate Authority or before this Court.

11. Faced with the aforesaid the counsel for the petitioner has contended

that it was for the respondents to allege that in the inspection on 13 th

December, 2010 of the shop of the petitioner, the gunny bags bearing the

fair price shop number of the petitioner and through which supplies were

made on 9th December, 2010 were not found.

12. The argument though attractive holds no water. The explanation had

to be rendered by the petitioner and the counsel for the petitioner cannot on

the basis of technicalities of law defeat the obvious. The strict rules of

criminal prosecution cannot be invoked. The petitioner has no absolute

right to carry on the said trade and has merely been granted a license on the

terms and conditions thereof and if the respondents who had granted the

license owing to the facts aforesaid, entertain suspicion about the conduct of

the petitioner, in my opinion the same is sufficient to cancel the license

particularly when this Court also does not find any perversity in such

suspicion. It cannot be lost sight of that the complaints against the fair price

shops of diverting the SFAs meant for poor and needy to the open market

and in the process illegally enriching themselves are rampant. This Court

cannot, in exercise of power of judicial review, lightly interfere with such

actions of the authorities and such interference may not only demoralize the

authorities responsible for taking action but also encourage the other

licensees to indulge in similar practices.

13. The petitioner though claims to have received the supplies on 9 th

December, 2010, has not placed before this Court any document of having

so received the supplies. I am unable to assume that when such goods are

delivered/received, no document with respect thereto will be

created/maintained. The counsel for the petitioner though is unable to

inform the prescribed procedure for such delivery and as to whether any

document in this regard exists, seeks time to produce the same.

14. Since the repercussions of the order against the petitioner are severe,

it is deemed expedient to grant an opportunity to the petitioner. The

argument of parity with order dated 23rd May, 2011 in W.P.(C)

No.8082/2010 titled Rajesh Gupta Vs. Govt. of NCT of Delhi shall also be

considered on that date.

List for further hearing on 13th July, 2011.

CM No.9431-32/2011 (both for exemption)

Allowed, subject to just exceptions.

RAJIV SAHAI ENDLAW, J JULY 07, 2011 bs