Delhi High Court
Asha Ram Gupta vs The Commissioner (Food & Supplies ... on 8 January, 2020
$~35
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : 08.01.2020
+ W.P.(C) 119/2020
ASHA RAM GUPTA ..... Petitioner
Through: Mr.Pardeep Gupta, Mr.Parinay
Gupta, Ms.Mansi Gupta, Ms.Mamta, Advs.
versus
THE COMMISSIONER (FOOD & SUPPLIES
DEPARTMENT) & ORS ..... Respondents
Through: Mr.Ramesh Singh, SC, GNCTD
with Mr.Chirayu Jain, Mr.Ishan Agrawal,
Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
CM No.349/2020
Exemption allowed, subject to all just exceptions.
W.P.(C) 119/2020 & CM No.350/2020 (Stay)
1. In view of the submissions made and as subsequently
recorded in the order, I do not consider it necessary to seek a
formal counter affidavit from the respondents.
WP(C) No.119/2020 Page 1
2. By way of the present petition, the petitioner challenges
the order dated 05.07.2019 issued by the Assistant
Commissioner (Policy), Department of Food Supplies &
Consumer Affairs, Government of NCT of Delhi inter alia
prescribing the penalty and later suspension/cancelation of the
FPS Licences for default of the FPS Licencee in making timely
payment of cost of SFAs allocated for further distribution to the
beneficiaries.
3. Placing reliance on Clause 4 of the Delhi Specified
Articles (Regulation of Distribution) Control Order, 1981
(hereinafter referred to as the 'Food Supply Order'), the learned
counsel for the petitioner submits that the same provides a
discretion to the Administrator / Deputy Commissioner of Food
Supply to order suspension/termination of the licence of the
FPS Licencee incase of their default. He submits that such
discretion has been taken away from the Deputy Commissioner
by way of the Impugned Order. Further, placing reliance on
Clause 24 of the Food Supply Order, he submits that the power
to issue directions can be exercised by the Commissioner only
by way of a 'notification in the Official Gazette' and only for
'purpose of giving effect to the provisions of this Order'.
However, in the present case, the Impugned Order is not in form
of a Gazette notification and in any case, instead of giving
effect to the provisions of the Food Supply Order, is in
derogation thereof.
WP(C) No.119/2020 Page 2
4. The petitioner further challenges the Suspension cum
Show Cause Notice dated 21.12.2019 issued by the Assistant
Commissioner (North), Department of Food & Supplies,
Government of NCT of Delhi, whereby the licence of the
petitioner has been suspended with immediate effect while
directing him to show cause as to why the licence/authorization
be not cancelled and the entire security amount forfeited.
5. The learned counsel for the petitioner submits that a
reading of the Impugned Suspension cum Show Cause Notice
shall clearly show that the Assistant Commissioner (North) was
of the view that because of the order dated 05.07.2019, there is
no discretion left in him but to order suspension of the licence
of the petitioner. He submits that this would be clearly contrary
to Clause 4 of the Food Supply Order.
6. On the other hand, the learned counsel for the
respondents submits that the result of the violation of any
direction issued under the Food Supply Order is the suspension
of the licence and later termination thereof. He submits that the
Impugned Order dated 05.07.2019 is itself a direction and
therefore, violation thereof has rightly been visited with an
order of suspension of the licence of the petitioner. He further
submits that in terms of Clause 19(10) of the Food Supply
Order, the Commissioner is entitled to issue such orders. He
further submits that the petitioner has replied to the show cause
WP(C) No.119/2020 Page 3
notice issued to him and therefore, the petitioner must be
relegated back to his departmental remedies. He further
submits that the Impugned Order dated 05.07.2019 does not
take away the discretion which has been vested in the
Administrator/Deputy Commissioner in terms of Clause 4 of the
Food Supply Order. To put it more clearly, he submits that even
incase of a third admitted default, on considering the
explanation given by the FPS Licencee, the
Administrator/Commissioner can, instead of taking action of
suspension/cancellation of licence take any other action against
the licence holder.
7. He further submits that the Impugned Order dated
21.12.2019, in fact, considers the explanation given by the
petitioner and thereafter, exercising discretion vested in the
Deputy Commissioner under Clause 4 of the Food Supply
Order, the order of suspension has been passed.
8. I have considered the submissions made by the learned
counsels for the parties.
9. In light of the submissions made by the learned counsel
for the respondents that the Impugned Order dated 05.07.2019
does not in any manner take away the discretion vested in the
Administrator /Commissioner to order suspension /revocation
of a licence in case of a third default by the licencee, the
challenge to the Impugned Order dated 05.07.2019, in my
opinion, no longer survives.
WP(C) No.119/2020 Page 4
10. To put it more clearly and as has been explained by the
learned counsel for the respondents, even incase of a third
default of a licence-holder, the Administrator/Commissioner of
Food Supply shall consider the explanation given by the
licencee and applying the test of proportionality, shall further
form an opinion on the punishment to be imposed on a licencee
who has defaulted in complying with the provisions of the Food
Supply Order or directions issued thereunder.
11. As far as the Impugned Order dated 21.12.2019, no
doubt, the Assistant Commissioner, in the Impugned order has
considered the explanation given by the petitioner and thereafter
observed as under:
"And whereas, the above scenario explicitly
indicate that the FPS holder is not able to run the
shop for the time being in a business-lime manner,
which is against the terms & conditions of the
authorization and is also detrimental to the Public
Distribution System.
Thus the authorization holder has violated
the terms & conditions of its authorization which
are mandatory for continuation of authorization
and thus attracts stern action under the provisions
of Delhi Specified Article (Regulation of
Distribution) Order, 1981 and instructions issued
thereunder."
12. At the same time, in the subsequent paragraph, the
Assistant Commissioner clearly indicates that he, in fact, has
read the order dated 05.07.2019 as leaving him with no
WP(C) No.119/2020 Page 5
option/discretion but to suspend the licence of the petitioner.
He has expressed this understanding in the following words:
"In compliance of the Department's order
No.3(28)/P&C/F&S/2018/Pt.File/614-625 dated
05.07.2019, there is no option left before the
Licensing Authority but to suspend the
authorization of the FPS No. 4377, M/s Asha Ram
Gupta."
13. In view of the submissions made by the learned counsel
for the respondents, the above observation of the Assistant
Commissioner in the Impugned Order cannot be sustained.
14. In view of the above, the Impugned order dated
21.12.2019 passed by the Assistant Commissioner, is set aside
granting liberty to the respondents to pass a fresh order thereon
after considering the reply of the petitioner and the effect of the
order dated 05.07.2019 in the form as explained by the learned
counsel for the respondents.
15. The learned counsel for the petitioner submits that in a
meeting with the Minister, Food and Supplies, Government of
NCT of Delhi held on 29.11.2019 (Minutes of Meeting dated
31.12.2019), certain decisions were taken. He submits that
these would be relevant for being considered by the Assistant
Commissioner while passing a fresh order on the Show Cause
Notice.
WP(C) No.119/2020 Page 6
16. Accordingly, it is directed that the respondent no.3 shall
also consider the effect of the Minutes of Meeting while passing
the fresh order.
17. The petition is disposed of in the above terms.
Dasti.
NAVIN CHAWLA, J
JANUARY 08, 2020
RN
WP(C) No.119/2020 Page 7
