Delhi High Court
Rajender Prasad Surinder Kumar vs The Assistance Commissioner Food ... on 17 December, 2013
Author: G. S. Sistani
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Delivered on: 17.12.2013
[1]+ W.P.(C) 948/2008 & CM. no.1863/2008
RAJENDER PRASAD SURINDER KUMAR ..... Petitioner
Through: Mr.Nitin Sehgal, Advocate
versus
THE ASSISTANCE COMMISSIONER FOOD & SUPPLIES ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
[2] W.P.(C) 5157/2008 & CM.No.9860/2008
AGGARWAL STORE ..... Petitioner
Through: Mr.Pradeep Gupta and Mr.Suresh Bharti,
Advocates for petitioner
versus
GOVT. OF NCT OF DELHI & ANR ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
[3] W.P.(C) 8386/2007 & CM No.15850/2007
MAHENDER KUMAR ..... Petitioner
Through: Mr.Anurag Mangla, Advocate
versus
GOVT. OF N.C.T. OF DELHI & ORS. ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
[4] W.P.(C) 8478/2007
SHOBHA KUMARI ..... Petitioner
Through: Mr.Sanjay Goel, Advocate.
versus
W.P.(C) 948/2008 & ors. Page 1 of 16
THE GOVT. OF NCT OF DELHI & ORS ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
[5] W.P.(C) 8554/2007
ASHOK PROVISION STORE ..... Petitioner
Through: Mr.Pradeep Gupta and Mr.Suresh Bharti,
Advocates for the petitioner.
versus
GOVT. OF N.C.T. OF DELHI & ORS. ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
[6] W.P.(C) 8611/2007 & 16227/2007
ISHWAR CHAND ..... Petitioner
Through: Mr.Anurag Mangla, Advocate.
versus
GOVT. OF N.C.T. OF DELHI & ORS. ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
[7] W.P.(C) 8634/2007
SHIV STORE ..... Petitioner
Through: Mr.Pradeep Gupta and Mr.Suresh Bharti,
Advocates for the petitioner.
versus
GOVT. OF N.C.T. OF DELHI & ORS. ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
[8] W.P.(C) 8635/2007
KANTA DEVI ..... Petitioner
Through: Mr.Pradeep Gupta and Mr.Suresh Bharti,
Advocates for the petitioner.
W.P.(C) 948/2008 & ors. Page 2 of 16
versus
GOVT. OF N.C.T. OF DELIH & ORS. ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
[9] W.P.(C) 9456/2007 & CM.No.17820/2007
AGGARWAL STORE ..... Petitioner
Through: Mr.Pradeep Gupta and Mr.Suresh Bharti,
Advocates for the petitioner.
versus
GOVT. OF NCT OF DELHI & ORS ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
[10] W.P.(C) 9616/2007 & CM.No.18087/2007
RIKHAB CHAND PROP. OF M/S J.N.U. CAMPUS STORE ..... Petitioner
Through: Mr.Sanjay Goel, Advocate
versus
THE GOVT. OF NCT OF DELHI ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
[11] W.P.(C) 8820/2007
PAWAN RATION STORE ..... Petitioner
Through: Mr.Pradeep Gupta and Mr.Suresh Bharti,
Advocates for the petitioner.
versus
GOVT. OF NCT OF DELHI & ORS ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
[12] W.P.(C) 8985/2007 & CM.No.16923/2007
ASHOK KUMAR AGGARWAL ..... Petitioner
Through: Mr.Sanjay Goel, Advocate.
W.P.(C) 948/2008 & ors. Page 3 of 16
versus
THE GOVT. OF NCT OF DELHI & ORS ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
[13] W.P.(C) 8714/2007 & CM.No.16430/2007
DEVINDER GOEL ..... Petitioner
Through:
versus
GOVT. OF NCT OF DELHI & ORS ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
[14] W.P.(C) 8646/2007
JANTA STORE ..... Petitioner
Through: Mr.Pradeep Gupta and Mr.Suresh Bharti,
Advocates for the petitioner.
versus
GOVT. OF N.C.T. OF DELHI & ORS. ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
[15] W.P.(C) 8819/2007 & CM.No.16625/2007
SARASWATI GENERAL STORE ..... Petitioner
Through: Mr.Pradeep Gupta and Mr.Suresh Bharti,
Advocates for the petitioner.
versus
GOVT. OF NCT OF DELHI & ORS ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
[16] W.P.(C) 8264/2007 & CM.No.15614/2007
ANIL KUMAR MISHRA ..... Petitioner
W.P.(C) 948/2008 & ors. Page 4 of 16
Through: Mr.S.K. Chaudhary, Advocate.
versus
GOVT. OF N.C.T. OF DELHI & ORS. ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
[17] W.P.(C) 8046/2007 & CM.No.15855/2007
SUMER CHAND MOHAN LAL ..... Petitioner
Through: Mr.Sanjeev Kumar Gupta, Adv.
versus
GOVT. OF NCT OF DELHI ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
[18] W.P.(C) 262/2008 & CM.No.506/2008
SHRI SHER SNGH ..... Petitioner
Through: Mr.Anil Kumar Jangra, Adv.
versus
GOVT. OF NCT OF DELHI & ORS ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
[19] W.P.(C) 8523/2007
MEHAR CHAND BAL KISHORE ..... Petitioner
Through: Mr.Pradeep Gupta and Mr.Suresh Bharti,
Advocates for the petitioner.
versus
GOVT. OF NCT OF DELHI & ORS ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
[20] W.P.(C) 8628/2007 & CM.No.16252/2007
RAM DASS GUPTA PROP. OF MOHAN STORE ..... Petitioner
W.P.(C) 948/2008 & ors. Page 5 of 16
Through: Mr.Sanjay Goel, Adv.
versus
GOVT. OF N.C.T. OF DELHI & ORS. ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
[21] W.P.(C) 8644/2007
RAM CHANDER PAWAR ..... Petitioner
Through: Mr.Nitin Sehgal, Adv.
versus
THE ASSISTANT COMMISSIONER OF FOOD
AND SUPPLIES SOUTH DELHI ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
[22] W.P.(C) 620/2008 & CM APPL. 1214/2008
RAM AVTAR KAILASH CHAND FPS
NO 8184 CIRCLE 2 ..... Petitioner
Through: Mr.Nitin Sehgal, Adv.
versus
ASSISTANT COMMISSIONER FOOD
AND SUPPLIES DELHI AND ANR ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
[23] W.P.(C) 291/2008
LAXMI STORE FPS ..... Petitioner
Through: Mr.Nitin Sehgal, Adv.
versus
THE COMMISSIONER FOOD AND
SUPPLIES DELHI AND ANR. ..... Respondents
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
W.P.(C) 948/2008 & ors. Page 6 of 16
[24] W.P.(C) 5505/2008 & CM APPL. 11408/2009
DAYA PRAKASH GUPTA ..... Petitioner
Through: Mr. Sanjay Mishra, Advocate
versus
STATE ANDORS. ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
[25] W.P.(C) 8645/2007
RADHEY SHYAM ANAND ..... Petitioner
Through: Mr.Pradeep Gupta and Ms.Sonia Sharma,
Advocates for petitioner
versus
GOVT. OF N.C.T. OF DELHI
AND ORS. ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
[26] W.P.(C) 530/2008
CHUNI LAL ..... Petitioner
Through: Mr.Pradeep Gupta and Ms.Sonia Sharma,
Advocates for petitioner
versus
GOVT. OF N.C.T. OF DELHI
AND ORS. ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
[27] W.P.(C) 30/2009
M/S SHREE DURGA STORE ..... Petitioner
Through: Mr.Pradeep Gupta and Ms.Sonia Sharma,
Advocates for petitioner
versus
GOVT. OF N.C.T. OF DELHI
W.P.(C) 948/2008 & ors. Page 7 of 16
AND ORS. ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
[28] W.P.(C) 9502/2007
TILAK RAJ ..... Petitioner
Through: Mr.Sanjay Goel, Advocate
versus
GOVT. OF N.C.T. OF DELHI
AND ORS. ..... Respondent
Through: Mr.Sushil Dutt Salwan and Mr.Neeraj
Chaudhary, Advocates for respondents
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J. (ORAL)
1. Counsel for the parties submit that facts in all these matters are similar.
All these petitions raise a common legal question, which can be disposed
of by a common order.
2. Rule. With the consent of counsel for the parties, the writ petitions are
taken up for final hearing and disposal.
3. As agreed, the facts of the Writ Petition No.948/2008 are being noticed.
The petitioner has been running a Fair Price Shop since the year 1987. On
19.3.1997, the shop was visited and inspected by officials of department of
respondent and some irregularities were found. A show cause notice-cum-
suspension memo dated 31.3.1997 was issued by the then Assistant
Commissioner for violation, as mentioned and simultaneously an FIR was
lodged against the authorisation/licence holder. Reply to the show cause
notice was submitted and hearing was granted by the Department. Upon
hearing, the Assistant Commissioner, Food and Supplies passed an order
dated 25.4.1997 forfeiting entire security amount of Rs.500/- and
thereafter restored the licence of the petitioner. After passing of the order,
the Assistant Commissioner did not resort to any further penal action
against the petitioner for cancellation of the fair price shop. Thereafter, the
petitioner continued to carry on its business on the basis of licence granted
by the respondent, without any complaint from the card-holders.
4. In the meanwhile, in the criminal proceedings, initiated upon registration
of the FIR, a judgment dated 22.8.1998 was passed by which the
petitioner, though convicted, was released on probation for one year and
on payment of costs of Rs.500/-. In the year 2007, after a gap of more than
10 years, a fresh show cause notice was issued on 10.9.2007 calling upon
the petitioner to show cause as to why the licence be not cancelled.
5. After hearing, by an impugned order dated 1.2.2008 the licence of the
petitioner has been cancelled. It is a common case of the petitioners that
the impugned order of cancellation passed by the respondent is unfair,
unjust and contrary to law and liable to be set aside.
6. Counsel for the petitioners further submitted that while passing the
judgment, the Special Court had made it clear that the order of conviction
could not affect the operation of the fair price shop.
7. Attention of this court has been drawn to the judgment dated 22.8.1998, a
copy of which has been placed on record. Concluding portion of the
judgment dated 22.8.1998 reads as under:
"In respect of sentence, accused, Suridner Kumar, I direct that he
shall be released on entering into a personal bond in the sum of
Rs.5,000/- with a security of like amount and to appear and receive
sentence within a period of 1 years whenever called upon to do so
and during time to keep peace and be of good behaviour. Accused,
Surinder Kumar shall also pay Rs.500/- as costs of proceedings.
This should not affect operation of F.P.S."
8. It is submitted by counsel for the petitioners that once the respondents had
issued show cause notice-cum-suspension memo dated 31.3.1997 and after
due hearing a penalty of forfeiture of security amount was imposed,
petitioners cannot be punished twice for the same offence. The second
argument of counsel for the petitioners is that in view of Section 12 of the
Probation of Offenders Act, 1958, petitioners do not suffer any
disqualification. The third argument of counsel for the petitioners is that
the show cause notice issued and cancellation order passed is liable to be
quashed, as firstly the action initiated has become stale; and secondly,
violation, if any, of the petitioners stands condoned as licences were
renewed subsequently for 10 years and more.
9. While counsel for the respondent submits that in addition to the
administrative action, respondents were entitled to take action as per
Clause 6 of Delhi Kerosene Oil (Export and Price) Control Order 1962
dated 5.12.1962, which reads as under:
"6. Contravention of the terms and conditions of licence:
(1) If any licencee or his agent or servant or any other person
acting on his behalf contravenes any of the terms and
condition or directions or any provisions of this order then
without prejudice to any other action that may be taken
against licensee according to law, his licence can be
suspended by order in writing by the Commissioner.
Proviso to clause 6(1) order vide Dt. 15.2.80.
(2) Without prejudice to the provisions of sub-clause 1 if the
Commissioner is satisfied that the licensee has contravened
any of the terms and conditions of a licence or the directions
issued under clause 3-D or any provision of this order and
cancellation of his licence is called for, may after giving the
licencee a reasonable opportunity of stating his case against
the proposed cancellation by order in writing cancel his
licence and shall forward a copy thereof to the licensee.
(3) Notwithstanding anything contains in this clause, where a
licencee is convicted by a court of law for breach of the
terms and conditions of the licence or contravention of the
provision of this order the licensing authority may by order
in writing, cancel his licence.
Provided that no such order shall be passed until the
appeal, if any, filed against such conviction is dismissed and
where no such appeal is filed until the period of limitation for
filing an appeal expires."
10. Counsel for the respondent also relied on Clause 7 of the 1981 Order
dated 12.01.1981, i.e. Delhi Specified Articles (Regulations of
Distribution) Order, 1981 which reads as follows, and submits that once
the petitioners had committed breach and he/she was convicted the
respondents were bound to cancel the licence of the petitioner:
"7. Cancellation of authorization upon
Conviction.- Notwithstanding anything contained in this
clause where an authorized wholesaler or a fair price shop
holder has been convicted by a court of law in respect of
contravention of any of the provisions of this Order or any
other order made under Section 3 of the Essential
Commodities Act, 1955 (10 of 1955), the Deputy
Commissioner may, by order, in writing cancel his
authorization forth with :
Provided that where such conviction is set aside in appeal or
revision the Deputy Commissioner may on application by the
person whose authorization has been cancelled re-issue the
authorization to such person."
11. Counsel for the respondent submits that the delay is procedural, as in the
period of 18 years, 24 Assistant Commissioners had been transferred in
one zone, and in another zone 12 Assistant Commissioners were
transferred in 10 years.
12. In response to the above, the counsel for the petitioners stated that in case
the respondents were to rely upon Clause 6 of Delhi Kerosene Oil (Export
and Price) Control Order 1962 and Clause 7 of the order dated 12.1.1981,
the same should have been invoked by them within a shortest period of
time from the date of the cause of action and in any case within a
reasonable period of time. It is further contended that on account of
delay, the respondents are estopped from relying on Clause 6 of Delhi
Kerosene Oil (Export and Price) Control Order 1962 and Clause 7 of the
Order dated 12.01.1981 which would deem to have been given up by the
respondents, by virtue of their conduct; and on the contrary, vested rights
have been created in favour of the petitioners by continuous renewal of
licenses, which cannot be taken away at this belated stage.
13. I have heard counsel for the parties and also perused the petition as also
the annexures filed along with the petitions.
14. The basic facts are not in dispute that the licenses were granted to the
petitioners to run fair price shops/Kerosene Oil Depots. Upon inspection
having been carried out and some irregularities having been found, show
cause notice was issued; hearing was granted and the petitioners were
penalized by forfeiting their security amount or some administrative
action was taken. Thereafter, licences of the petitioners were renewed
from time to time and only after a gap of more than 10 years, fresh show
cause for cancellation of the Fair Price Shop/KODs was issued and the
licences were cancelled as according to the respondent, petitioners had
incurred a disqualification having been convicted by a criminal court, in
terms of the 1962 and 1981 Orders.
15. Admittedly, action was taken by the Assistant Commissioner against the
petitioners and a penalty of forfeiture of security amount was imposed.
No further action against the petitioners was taken for more than a period
of 10 years. Thus in my view having not taken action for 10 years and on
the contrary having renewed licences of the petitioners would amount to
condoning the acts of the wrong doer; and after 10 years, the respondents
are estopped from taking action against the petitioners having waived off
their rights by their own conduct, and the respondents by their own act
have condoned the acts of the wrongdoer and are now estopped from
changing their position.
16. It is settled law that a statutory authority is required to act reasonably and
fairly. The Apex Court in Power Control Appliances v. Sumeet Machines
(P) Ltd., (1994) 2 SCC 448 has held as under:
"Acquiescence is sitting by, when another is invading the rights and
spending money on it. It is a course of conduct inconsistent with the
claim for exclusive rights in a trade mark, trade name etc. It
implies positive acts; not merely silence or inaction such as is
involved in laches. In Harcourt v. White Sr.John Rommilly said: "It
is important to distinguish mere negligence and acquiesce."
Therefore, acquiescence is one fact of delay. If the plaintiff stood by
knowingly and let the defendants build up an important trade until
it had become necessary to crush it, then the plaintiffs would be
stopped by their acquiescence. If the acquiescence in the
infringement amounts to consent, it will be a complete defence as
was laid down in Mouson (J.G.) & Co. v. Boehm. The acquiescence
must be such as to lead to the inference of a license to create a new
right in the defendant as was laid down in Rodgers v. Nowill.
17. Accordingly, the respondents have not only slept over its rights and, thus,
waived it but also by agreeing to transfer the licenses in the name of the
petitioners have reasonably and fairly given a right to petitioners. Further,
the respondents in the present petitions have given a reasonable belief to
the petitioners that their rights and title is good and shall not be disturbed.
18. Consequent to raids carried out on different dates in different cases,
proceedings were initiated against different persons by respondents. The
matters were pursued by the respondents and the order(s) was/were so
passed, were within the knowledge of the respondents. In case the
respondents/department was of the view that in addition to the
administrative action licence of authorization is also to be cancelled, then
the respondent/department would have been well within its rights to take
appropriate action within a reasonable period of time. Whereas in the
present cases, the department in many cases has only taken administrative
action and passed orders of forfeiture of security deposit, but decided not
to take extreme action of cancellation of licence. At this belated stage, the
action of the respondent has become stale and more so the authorization
of person who was actually convicted has already been transferred to
another, which transfer has been carried out by the respondents
department and the new proprietor authorization holder has been
continuously running KOD/ Fair Price Shop for years. The above
narration of facts would show that the department has been extremely
careless and casual in enforcing the terms of the license, in accordance
with law, and, thus, respondents' action cannot be sustained.
19. Moreover, in my view the petitioners have not incurred the
disqualification of grant of license/authorization due to conviction, as it is
settled law that a person released on probation under Section 12 of the
Probation of Offenders Act shall not suffer any disqualification. In the
case of Gulzar v. State of M.P., (2007) 1 SCC 618, it has been held as
under:
"....While Section 12 of the PO Act states that the person found
guilty of an offence and dealt with under Section 3 or 4 of the PO
Act shall not suffer disqualification, if any, attached to the
conviction of an offence under any law...."
20. Respondents counsel has placed reliance upon the report of Justice
Wadhwa Committee constituted by the Supreme Court of India. Due to
the aforesaid facts and observations, respondents cannot at this stage get
benefit of their inaction or the findings on the report.
21. In view of the aforesaid, present petitioners cannot be penalized, at this
stage even more so since the published acts, in some cases, were never
committed by the present license holders. A party is bound to act
reasonably more so a statutory authority. The authority was under a duty
to act reasonably and without prejudice to the rights of the petitioners.
Given that the authority has itself renewed to license(s) of the petitioners,
they themselves have condoned the earlier convictions. Further by not
acting within a reasonable period of time and by agreeing to renew the
licenses in the name of petitioners have given the petitioners a reasonable
cause to believe that a right has accrued in their favour. Petitioners are
also entitled to the benefit of Section 12 of the Probation of Offenders
Act. Accordingly, the impugned orders of show cause notices/cancellation
orders are quashed.
22. Rule is made absolute. All the petitions and the applications stand
disposed of in above terms. Parties shall bear their own costs.
23. It is informed that in the case of WP(C)No.9502/2007 in addition to the
order of cancellation, other proceedings are also pending. It is clarified
that in addition to the order of cancellation, all other proceedings which
are stated to be pending in the case of WP(C)No.9502/2007 shall be
decided unaffected by the orders passed by this court in the present
proceedings.
G.S. SISTANI, J.
DECEMBER 17, 2013
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