M/S.Surinder Singh vs Govt. Of N.C.T. Of Delhi & Ors
2014 Latest Caselaw 1519 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI
+        W.P.(C) 8483/2007
%                                               Judgment dated 21.03.2014


         M/S.SURINDER SINGH                               ..... 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 impugned cancellation order dated 24.10.2007 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 27.1.1977 for running the Fair Price Shop (for short, 'FPS') No.5000 in Circle No.12, at A-93, Uttam Nagar, New Delhi renewed upto 23.3.2009 issued by the respondent. A copy of the license dated 27.1.1977, granted in favour of the petitioner, has been filed along with the writ petition as Annexure P-2.

4. On 18.9.1985 an inspection was carried out by the Food & Supplies Delhi

Administration and upon inspection the following irregularities were detected:

(i) FPS has failed to mention the rates of specified articles in the cash memos issued to the food card holders.

(ii) Wheat was found excess by 1,67,200 gms. in the stock.

(iii) Rice was found excess by 1,34,700 gms. in the stock.

            (iv)    Sugar was excess by 2,09,800 gms in the stock.
            (v)     Imported sugar was found excess by 00,06,000 gms.
            (vi)    Maida was found short by 00,03,700 gms. in the stock.

(vii) Rapeseed oil was found short by 00,08,500 gms.

(viii) RBD palm oil was found short by 00,07,000 gms.

5. On the basis of inspection conducted and report submitted, a show cause notice dated 7.10.1985 was issued to the petitioner by the respondent and subsequently on the basis of an inspection note dated 18.9.1985, an FIR No.601/85 was lodged at P.S.Janakpuri, under Section 7 of the Essential Commodities Act. The petitioner filed a detailed reply dated 18.10.1985 to the show cause of the respondents. Consequent thereto vide order dated 16.7.1986, an order of forfeiture of the security amount of Rs.500/- deposited by the petitioner was passed and the licence of the petitioner was restored. On the other hand vide order dated 1.8.1998, Special Court convicted the petitioner and he was awarded R.I. for three (3) months and fine of Rs.1000/-; it was also ordered that in case of default of payment of fine, petitioner will further undergo SI for one month. The order of sentence was suspended by that very Special Court upto 14.9.1998, so as to enable the petitioner to file appeal. The High court ordered that the order of suspension of sentence shall remain continued and finally on 28.2.2002 the High Court ordered to reduce the sentence period already

undergone.

6. It is the case of the petitioner that petitioner was running the FPS shop for the last 9 years after passing of the judgment dated 01.08.98. Counsel for the petitioner submits that it is clear that the impugned cancellation order dated 24.10.2007 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 two years ago. Counsel further submits that during the period of twenty two years the license of the petitioner was renewed from time to time. Counsel also contends that the 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 further submits that there are no reasons, which have been given in the order, which would justify the action of cancellation 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.

9. 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."

10. 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.

11. Learned counsel for the respondent, while placing reliance on the report of Justice Wadhwa Committe, 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. This report details with Delhi.

12. It is submitted by counsel for the petitioner that the scope of the directions of the Committee was not to look into the genuine cases and 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 and he also paid fine and his security amount was forfeited, thus, he should not be punished repeatedly for the same offence.

13. 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.

14. I have heard learned counsel for the parties and considered their rival submissions. In this case, admittedly, Authorisation No.5000 in Circle No.12, at A-93, Uttam Nagar, New Delhi was granted to the petitioner, which was renewed upto 23.3.2009.

15. On 18.9.1985 an inspection was carried out by the Food & Supplies Delhi Administration and upon inspection the irregularities mentioned in

paragraph 4 aforementioned were found. On the basis of inspection, a show cause notice dated 7.10.1985 was issued to the petitioner by the respondent and subsequently on the basis of an inspection note dated 18.9.1985, an FIR No.601/85 was lodged at P.S.Janakpuri, under Section 7 of the Essential Commodities Act. The petitioner filed to the show cause notice. Thereafter an order dated 16.7.1986 forfeiture of the security amount of Rs.500/- was passed and the licence of the petitioner was restored. The Special Court convicted the petitioner vide order dated 1.8.1998 and he was awarded R.I. for three (3) months and fine of Rs.1000/-. The order of sentence was suspended by that very Special Court upto 14.9.1998, so as to enable the petitioner to file appeal. The High court continued the order of suspension of sentence and finally on 28.2.2002 reduced the sentence of the petitioner to the period already undergone.

16. On 10.09.2008 a show cause notice was issued to the petitioner under 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 15.9.2007 at 2:30 p.m. Thereafter on 24.10.2007 the impugned cancellation order was passed.

17. Admittedly, no administrative action was taken by the respondent against the petitioner for more than 22 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, petitioner was sentenced 3 months R.I. with a fine of Rs.1000/-. 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 9 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 1985, there is no complaint against the petitioner till date. Any action of cancellation would, therefore, cause great prejudice to the petitioner.

20. Even otherwise the petitioners cannot be punished twice for the same offence, as pursuant to a show cause notice security amount deposited by the petitioners was forfeited. Accordingly, impugned order dated 24.10.2007 is quashed.

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

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