M/S.Ram Lubhaya vs Govt. Of N.C.T. Of Delhi & Ors
2014 Latest Caselaw 1520 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+        W.P.(C) 8636/2007

%                                               Judgment dated 21.03.2014


         M/S.RAM LUBHAYA                                 ..... Petitioner
                      Through :          Mr.George Tomes & Mr.H.S.Dubey, Adv

                            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 respondents to quash the impugned cancellation order dated 27.10.2007 issued by Assistant Commissioner (North).

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 Sh.Ram Lubhaya (father of the petitioner) had been granted licence on 19.1.1977 for running the Fair Price Shop (for short, 'FPS') No.4760 vide authorization No.40/C-11 at 27, New Market, Timarpur, Delhi. A copy of the authorization letter is annexed with the petition as Annexure P-1.

4. On 27.8.1987 an inspection was carried out by the Food & Supplies Delhi

Administration at the FPS No.4760, and upon inspection following irregularities were found :

(i) Receipt of one tin of rape seed oil (2 Kg.) was denied by the Food Card Holder in respect of cash memo No.4942 dated 17.8.1987.

(ii) Receipt of one tin of rapeseed oil of 2 Kg. was denied by the card holder in respect of cash memo no.4989 dated 15.8.1987.

(iii) 40 Kg. of wheat was issued vide cash memo no.984 on 23.8.1987 was not posted in the sale / stock register.

(iv) 20 Kg. of wheat was issued vide cash memo no.1053 dated 27.8.1987, but had posted 35 Kgs. in the sale / stock register.

(v) Sugar was found short by 5.900 Kgs.

(vi) Palm oil was found excess by 9.00 Kgs.

(vii) Rapeseed oil 2 Kg. Tin found short in stock.

5. Based on the inspection report prepared, an FIR No.236/87 was registered at Police Station Civil Lines under Section 7 of the Essential Commodities Act. On 25.11.1997 it was held by the Special Court that the Sh.Ram Lubhaya had committed the offence punishable under Section 7 of the Essential Commodities Act. The Special Court had released Sh.Ram Lubhaya on his entering into a bond in the sum of Rs.5000/- with one surety in the like amount to appear and receive the sentence when called upon to do so during the period of one year and in the meantime to keep peace and be of good behaviour. The said Sh.Ram Lubhaya expired on 20.12.2006. Thereafter petitioner (son of the Sh.Ram Lubhaya) applied for licence as per guidelines. The petitioner was granted provisional licence on 11.1.2007 and an inspection was conducted by the

food Inspector of the respondent on 25.1.2007. Being satisfied with the inspection, licence was granted to the petitioner.

6. It is the case of the petitioner that upto 2006 father of the petitioner and thereafter petitioner was running the FPS shop i.e. for the last 10 years after passing of the judgment dated 25.11.97 and 20 years from the date of issuance of the licence.

7. Counsel for the petitioner submits that it is clear that the Order of cancellation dated 27.10.2007 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].

8. Learned counsel for the petitioner submits that the petitioner cannot be punished for an offence committed by his father twenty years ago. Counsel further submits that during the period of twenty years 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. Even otherwise the father of the petitioner has never been convicted and was released on probation and granting of probation does not amount to conviction.

9. 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.

10. Mr.Salwan, learned counsel for the respondent, submits that once the

licencee 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 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.

13. 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 father of the petitioner has already suffered the rigours of trial, and he was never convicted and was released on probation, thus, the petitioner 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, father of the petitioner, late Sh.Ram Lubhaya had been granted licence on 19.1.1977 for running the Fair Price Shop No.4760 vide authorization No.40/C-11 at 27, New Market, Timarpur, Delhi. On 27.8.1987 an inspection was carried out by the Food & Supplies Delhi Administration at the FPS No.4760, and upon inspection, irregularities as have been extracted in paragraph 4 above, were found. An FIR No.236/87 under Section 7 of the Essential Commodities Act was registered at Police Station Civil Line. On 25.11.1997 the Special Court had held that the father of the petitioner (Sh.Ram Lubhaya) had committed the offence punishable under Section 7 of the Essential Commodities Act. The Special Court had released Sh.Ram Lubhaya on his entering into a bond in the sum of Rs.5000/- with one surety in the like amount to appear and receive the sentence when called upon to do so during the period of one year and in the meantime to keep peace and be of good behaviour. The said Sh.Ram Lubhaya expired on 20.12.2006. Thereafter petitioner (son of the Sh.Ram Lubhaya) applied for licence as per guidelines. The petitioner was granted provisional licence on 11.1.2007 and an inspection was conducted by the food Inspector of the respondent on 25.1.2007. Being satisfied with the inspection, licence was granted to the petitioner.

16. On 29.9.2007 a show cause notice was issued and thereafter the impugned cancellation order dated 27.10.2007 was issued by Assistant Commissioner (North). Admittedly, no administrative action was taken by the respondent against the father of the petitioner since 25.11.1997 for more than 20 years and in fact the license of the petitioner was renewed from time to time.

17. 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.

18. 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 20 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 1987, there is no complaint against the petitioner till date. Any action of cancellation would, therefore, cause great prejudice to the petitioner. The impugned order of cancellation dated 27.10.2007 issued by Assistant Commissioner (North), is quashed.

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

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