Shri Harbans Lal vs Govt. Of N.C.T. Of Delhi & Ors
2014 Latest Caselaw 1521 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI
+        W.P.(C) 273/2008
%                                               Judgment dated 21.03.2014


         SHRI HARBANS LAL                                   ..... Petitioner
                      Through :          Counsel for the petitioner.

                            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 order dated 17.12.2007 and order dated 11.10.2007 passed by respondent.

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 27.4.1981 for running the Fair Price Shop (for short, 'FPS') No.5555 (Circle No.23) at 79, Friends Enclave, Nagloi, Delhi, by the respondent. A copy of the authorization granted in favour of the petitioner, has been filed along with the writ petition.

4. On 03.7.1989 an inspection was carried out by the Food & Supplies Delhi Administration and records i.e. stock register, sales register and cash

memo books were seized; and the stock of specified articles was weighed and counted. The following articles were found short:

                    (i)     Wheat was found short by 25 k.g.
                    (ii)    Sugar was found short by 91 k.g.

(iii) Rice was found in excess by 66 k.g. and 900 gms.

Verification statement for the month of March, 1989 was also prepared, wherein variation of 2 quintals of rice was found.

5. Based on the inspection report prepared, an FIR No.251/89 was registered under Sections 7/10/55 of the Essential Commodities Act, at Police Station Sultanpuri. On 28.7.1998 petitioner was convicted and subsequently the trial court released the petitioner on his entering into a personal bond in the sum of Rs.10,000/- with one surety of like amount, to appear and receive sentence within a period of one year and in the meantime to keep peace and bear good behaviour; and the costs of Rs.5000/- was also imposed.

6. It is the case of the petitioner that petitioner was running the FPS shop for the last about 26 years; and on the basis of an inspection carried out on 03.7.1989 an FIR was registered and the judgment dated 28.7.98 was passed. It is submitted that the impugned order dated 11.10.2007 was passed by respondents solely 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 eighteen years ago. Counsel further submits that during the period of eighteen 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.

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 undergone the rigour of trial and also paid fine and costs, thus, he should not be punished twice 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.5555 (Circle No.23) at 79, Friends Enclave, Nagloi, Delhi was granted in favour of the petitioner by the respondent. In this case on 03.7.1989 an inspection was carried out by officials of respondents record of the petitioner was seized; the stock of specified articles was weighed and counted, wherein the following articles were found short:

            (i)     Wheat was found short by 25 k.g.
            (ii)    Sugar was found short by 91 k.g.

(iii) Rice was found in excess by 66 k.g. and 900 gms.

Verification statement for the month of March, 1989 was also prepared, wherein variation of 2 quintals of rice was found.

15. Based on the inspection, an FIR No.251/89 was registered under Sections 7/10/55 of the Essential Commodities Act, at Police Station Sultanpuri. On 28.7.1998 petitioner was convicted and subsequently released on his entering into a personal bond in the sum of Rs.10,000/- with one surety of like amount, to appear and receive sentence within a period of one year and in the meantime to keep peace and bear good behaviour; and the costs

of Rs.5000/- was also imposed.

16. Admittedly, no administrative action was taken by the respondent against the petitioner for about 18 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. In this case, trial court has clearly observed that the accused is not a previous convict and the major difference is of 2 quintal of rice on 10.3.89, which has been explained satisfactorily; and the other variations are only of few kilos. The trial Court, however, held that it does not seem fit case where accused be sent to jail; and released the accused on his entering into a personal bond in the sum of Rs.10,000/- with one surety of like amount, to appear and receive sentence within a period of one year and also directed to keep peace and bear good behaviour. The trial Court also imposed costs of Rs.5000/-.

19. 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 18 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 1989, there is no complaint against the petitioner till date. Any action of

cancellation would, therefore, cause great prejudice to the petitioner. Resultantly, impugned order dated 17.12.2007 and order dated 11.10.2007 are quashed.

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

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