M/S.Rattan Lal vs Govt. Of N.C.T. Of Delhi & Ors
2014 Latest Caselaw 1517 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI
+        W.P.(C) 8259/2007
%                                                Judgment dated 21.03.2014


         M/S.RATTAN LAL                                         ..... Petitioner
                      Through :           Mr.Pradeep Gupta, Advocate

                             versus

         GOVT. OF N.C.T. OF DELHI & ORS                   ..... Respondents

Through : Mr.S.D. Salwan and Ms.Latika Dutta, Advocate

CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J (ORAL)

1. Present petition has been filed by petitioner under Articles 226/227 of the Constitution of India for issuance of a writ of certiorari or any other writ directing respondent no.1 to 3 to quash the show cause notice dated 1.11.2007 issued by Assistant Commissioner (NW).

2. Rule. With the consent of counsel for the parties, present writ petition is set down for final hearing and disposal.

3. The necessary facts for disposal of the present writ petition are that the petitioner had been granted licence on 12.1.1981 for running the Fair Price Shop (for short, 'FPS') No.3868 in Circle No.55, Jahangirpuri as per licence dated nil renewed upto 11.4.2009 issued by the respondent no.2. A copy of the license dated 12.1.1981, granted in favour of the petitioner, has been filed along with the writ petition.

4. On 19.2.1983 an inspection was carried out by the Food & Supplies Delhi

Administration and upon inspection it was found that rapseed oil was short by 2 KG and 500 grms while 12 tins of rapseed oil which were received by the FSP holder on 17.2.1983 were not entered in the stock register. Based on the inspection report prepared, an FIR No.141/83 was registered at Police Station Adarsh Nagar. On 26.10.1984 petitioner was sentenced to imprisonment till rising of the court and further a fine of Rs.750/- was imposed in the proceedings under Section 7 of the Essential Commodities Act.

5. It is the case of the petitioner that petitioner was running the FPS shop for the last 23 years after passing of the judgment dated 26.10.84; and the impugned show cause notice was issued for cancellation of the licence by respondent no.2 solely on the basis of the judgment dated 26.10.84.

6. Counsel for the petitioner submits that it is clear that the Show Cause Notice dated 1.11.2007 was issued by respondent no.2 on the basis of the directions / letter dated 4th July, 2007 passed by the higher authorities [Central Vigilance Committee].

7. Learned counsel for the petitioner submits that the petitioner cannot be punished for an offence committed by him twenty three years ago. Counsel further submits that during the period of twenty three years the license of the petitioner was renewed from time to time; and also license of the petitioner cannot be cancelled after such a long gap without any cogent or plausible explanation with regard to delay on the part of the respondents. Counsel also contends that on account of the delay the respondent has condoned the act of the petitioner and the action of the respondent is stale.

8. Counsel for the petitioner further submits that the trial court while passing the Order dated 26.10.1984 has recognised the fact that the nature of shortages was a technical one. In support of this submission counsel has

drawn the attention of the Court to the Order on sentence passed by Additional Session Judge, Delhi, on 26.10.1984.

9. Counsel further submits that there are no reasons, which have been given in the order, which would justify the action of cancellation of licence against the petitioner. Counsel contends that it is the case of the petitioner that after the Committee was formed by the Supreme Court of India, sweeping actions were taken without any application of mind and under the fear of strictures being passed and action being taken against the erring officials.

10. Mr.Salwan, learned counsel for the respondent, submits that once the petitioner had committed breach and he was convicted, the respondent was well within its right to take action as per Clause 7 of the 1981 Order dated 12.01.1981, i.e. Delhi Specified Articles (Regulations of Distribution) Order, 1981 which reads as follows:

"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, and, thus, the delay cannot be attributed to the

respondent.

12. Learned counsel for the respondent, while placing reliance on the report of Justice Wadhwa Committee, contends that the Supreme Court of India passed an order in WP(C) 196/2001 constituting Central Vigilance Committee to be headed by Mr.Justice D.P. Wadhwa, a retired Judge of the Supreme Court to be assisted by Dr.N.C. Saxena, Commissioner, earlier appointed by Court. The Committee was required to look into the maladies affecting the proper functioning of Public Distribution System (PDS) and to suggest remedial measures. In particular, the Committee was asked to focus on (a) The mode of appointment of the dealer; (b) the ideal commission or the rate payable to the dealers; (c) modalities as to how the Committees already in place can function better; and (d) modes as to how there can be transparency in allotment of the food stock to be sold at the shops. The Supreme Court further directed that while dealing the question of mode of appointment, the Committee would also suggest as to a transparent mode in the selection of the dealers. The Committee would also indicate as to how more effective action can be taken on the report of the Vigilance Committee already appointed. The direction was issued initially for the Government of Delhi to be followed on all India basis.

13. It is submitted by counsel for the petitioner that the scope of the directions of the Committee was to look into the genuine cases and not old matters where action had already been taken many years prior to the formation of the Wadhwa Committee. It is further submitted that the petitioner has already suffered the rigours of trial, as he was convicted till the rising of the Court and he also paid fine and, thus, he should not be punished twice for the same offence.

14. Learned counsel for the respondent submits that as per Clause 7 of Delhi Specified Articles (Regulations of Distribution) Order, 1981, it was

mandatory upon the respondent to cancel the license of the petitioner after he was convicted by a court of law. Counsel further submits that the action was optional as the word, which has been used is 'may' and the same cannot be read as 'shall'. Counsel also submits that there is no question of double jeopardy as the action for cancellation of the license has been taken pursuant to Clause 7 of Delhi Specified Articles (Regulations of Distribution) Order, 1981, which would come into play after the order of conviction has been passed.

15. I have heard learned counsel for the parties and considered their rival submissions. In this case, admittedly, Authorisation No.3868 in Circle No.56 was granted in favour of the petitioner for running a shop. On 19.2.1983 an inspection of the shop of the petitioner was carried out. The Inspectors found discrepancies and relevant record of the said FPS was seized and the stock of rapseed oil and palm oil on checking was found nil; subsequently on verification in the office it was found that rapseed oil was short by 2 KG and 500 grams while 12 tins of rapseed oil which were received by the FPS holder on 17.2.1983 were not entered in the stock register. Based on the report prepared, a written complaint was filed, consequent to which FIR no.141/83 was registered at P.S. Adarsh Nagar. Trial was conducted and vide judgment dated 26.10.1984 the petitioner was convicted with imprisonment till the rising of the Court together with a fine of Rs.750/-.

16. On 1.11.2007 the impugned Show Cause Notice was issued to the petitioner under Clause 7 of Delhi Specified Articles (Regulation of Distribution) Control Order 1981 to explain as to why his license should not be cancelled for the offence committed. The petitioner was also called upon to appear in person or through his representative on 12.11.2007.

17. Admittedly, no administrative action was taken by the respondent against

the petitioner for more than 23 years and in fact the license of the petitioner was renewed from time to time.

18. A careful reading of Clause 7 of Delhi Specified Articles (Regulations of Distribution) Order, 1981, would show that the word, which has been used is 'may' and not 'shall' and, thus, it is not for the Court to substitute its interpretation or to give a meaning to a word unless the clause is unhappily worded or requires an interpretation to be given. In my view the word 'may' is to be read as it is and should not be substituted for 'shall' for the reason that the nature of offence committed by an individual would depend on the facts of each case.

19. In this case, trial court has clearly observed that the nature of lapse on the part of the accused was a technical one, on account of which only his security amount of Rs.500/- was forfeited. The petitioner was sentenced to imprisonment till rising of the Court with a fine of Rs.750/-. The reason why the petitioner must succeed in this writ petition is that there is gross delay on the part of the department i.e. as long as approximately 23 years. In my view the respondents have condoned the acts of the petitioner by renewing the license of the petitioner year after year and moreover there is no explanation for the gross delay in the matter and further from the date of inspection, which took place in the year 1983, there is no complaint against the petitioner till date. Any action of cancellation would, therefore, cause great prejudice to the petitioner.

20. Petition is allowed. The rule is made absolute.

G.S.SISTANI, J MARCH 21, 2014 ssn