[Cites 12, Cited by 0]
Gujarat High Court
Ramchandra Jatinbhai Patel S/O Decd. ... vs State Of Gujarat on 2 April, 2026
NEUTRAL CITATION
C/SCA/16202/2024 JUDGMENT DATED: 02/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16202 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
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RAMCHANDRA JATINBHAI PATEL S/O DECD. JATINBHAI GOPALBHAI
PATEL
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR HR PRAJAPATI(674) for the Petitioner(s) No. 1
MS NISHKA H PRAJAPATI(10717) for the Petitioner(s) No. 1
MS NIRALI SARDA, ASST. GOVERNMENT PLEADER for the Respondent(s)
No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 02/04/2026
JUDGMENT
1. Rule returnable forthwith. Learned Assistant Government
Pleader Ms. Nirali Sarda, waives service of notice of Rule for and on
behalf of the respondents - State Authorities.
2. With the consent of the learned counsel appearing for the
respective parties, the petition has been taken up for final hearing
today.
3. By way of present petition under Article 226 of the Constitution
of India read with the provisions of the Gujarat Essential Commodities
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(Licensing to Fair Price Shop) Order, 2004, petitioner has prayed for
the following reliefs :
"(a) YOUR LORDSHIPS be pleased to issue a writ of mandamus or any other
appropriate writ, order and/or direction and be pleased to quash and set
aside the order dated 05.04.2021 (Ann. 'J') passed by the respondent no. 2
rejecting the appeal filed by the petitioner on the ground of delay of 2 years
and 7 months and the order dated 21.09.2022 (Ann. 'M') passed by the
respondent no. 1 refusing to entertain the Revision Application on the
ground that the Respondent no. 2 has not passed the impugned order on
merits but it is dismissed on the ground of delay as being illegal, invalid,
unjust, unfair, without jurisdiction and competence, null & void, against the
principles of natural justice and violative of Arts. 14, 19 and 21 of the
Constitution of India.
(b) YOUR LORDSHIPS be pleased to stay the further operation,
implementation and execution of the order dated 21.09.2022 (Ann. 'M')
passed by the respondent no. 1, order dated 05.04.2021 (Ann. 'J') passed
by the respondent no. 2 and 11.05.2018 (Ann. 'E') passed by the
respondent no. 3 pending the admission, hearing and final disposal of this
petition;
(c) YOUR LORDSHIPS be pleased to direct the respondent authorities to
permit the petitioner to run his fair price shop which was being run by him
prior to cancellation/suspension of his license pending the admission,
hearing and final disposal of this petition;
(d) YOUR LORDSHIPS be pleased to pleased to grant such other and further
relief/s, as are deemed fit, in the interest of justice."
4. Brief facts giving rise to the present petition are that, in the
year 1981, father of the petitioner was granted retail license being no.
71/1981 to run the fair price shop, however, the father of the
petitioner expired on 31.07.2016 and therefore, the petitioner had
applied for transferring the said license on his name on the ground of
heirship under the policy of the State of Government. That, after
following due procedure of law, the Prant Officer, Surat City by the
order dated 19.09.2016 transferred the license on the name of
petitioner from the name of his father on the ground of heirship. That,
one Sonalben Narendrabhai Tiwari gave written complaint dated
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23.12.2017 to the respondent No. 2 alleging that she was holding a
ration card attached with the shop of the petitioner and the petitioner
has given the said shop on rent to one Kiran Gopalbhai Khinchi. It was
further alleged that, though the said Sonalben was not given the stock
of wheat and rice, on her name stock of wheat and rice was issued
from January, 2017 to November, 2017 and thereby created fake
documents and illegally disposed of stock of wheat and rice. That, the
said Sonalben also filed the criminal complaint against the petitioner
with Pandesara Police Station, Surat on 02.01.2018 for the offences
punishable under Sections 406, 409, 420, 465, 471, 120-B of IPC and
later on, IPC Section 467 and Section 7 of the Essential Commodities
Act and Sections 65 and 66(c) of the IT Act also came to be added.
That, in connection with the said offence, the petitioner was arrested
and sent to judicial custody on 12.03.2018. That, as the petitioner was
arrested by police, the Mamlatdar, Udhana passed the order dated
30.01.2018 transferring the charge of petitioner's fair price shop to
one Narayan Kasturji and the license granted to the petitioner came
to be suspended with immediate effect for a period of 90 days by the
order dated 16.02.2018.
4.1 It is the case of the petitioner that, the respondent No. 3 then
issued show cause notice dated 22.03.2018 showing cause as to why
the license granted to the petitioner should not be cancelled, which
was served upon the petitioner while he was in judicial custody in
Lajpor Jail, Surat. That, the petitioner had submitted his reply dated
10.05.2018 while the petitioner was in jail and had also given
reasonable and plausible explanations to the show cause notice. That,
without properly considering the explanations offered by the
petitioner and without application of mind, the respondent No. 3
passed the order dated 11.05.2018 cancelling the license granted to
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the petitioner. That, when the order dated 11.05.2018 came to be
passed by the respondent No.3, the petitioner was in jail in connection
with the FIR registered against him. That, though the petitioner was
served with the show cause notice in jail but, he was not served with
the order dated 11.05.2018 in jail by the respondent No. 3 and thus,
the petitioner was not aware about the order dated 11.05.2018
passed by the respondent No. 3. That, the petitioner was released on
regular bail by the order dated 28.08.2018 passed in Criminal Misc.
Application No. 14953 of 2018 by this Court. That, the petitioner was
in dark as to what happened after he tendered his reply dated
10.05.2018 to the show cause notice dated 22.03.2018 since the
petitioner was in judicial custody. That, the petitioner was absolutely
unaware about the order dated 11.05.2018 passed by the respondent
No. 3. That, after waiting for a quite long time, the petitioner had
inquired from the office of the respondent No. 3 in the first week of
December, 2020 as to what happened about the proceedings initiated
against him by issuing a show cause notice and in response to the
same, the petitioner was informed by the office of the respondent No.
3 that the order of cancellation has been passed on 11.05.2018.
Therefore, the petitioner had submitted an application dated
18.12.2020 under RTI seeking copy of the order dated 11.05.2018 and
other documents. That, the RTI officer supplied the documents along
with the order dated 11.05.2018 with reply letter dated 01.01.2021.
That, it was only after RTI application given by the petitioner, he was
supplied the order dated 11.05.2018 for the first time. That, on
receipt of the order dated 11.05.2018, immediately, the petitioner
had filed the appeal before the respondent No. 2 on 11.01.2021,
wherein, in para-10 of the appeal memo, the petitioner has stated
about the receipt of copy of the order dated 11.05.2018 on
02.01.2021. Therefore, within a period of 30 days, the petitioner had
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filed appeal before the respondent No. 2. That, in para-15 of the
appeal memo, the petitioner has stated that as the petitioner had
received the copy of the order dated 11.08.2018 on 02.01.2021
through RTI, the appeal was within limitation.
4.2 It is the case of the petitioner that, by the order dated
05.04.2021, the respondent No. 2 did not entertain the appeal on the
ground that there is a delay of two years and seven months in filing
the appeal against the order dated 11.05.2018 and thus, on the
ground of delay, without considering the submissions made by the
petitioner in the appeal memo, the appeal was not entertained by the
respondent No. 2. Being aggrieved with the same, the petitioner filed
the Review Application dated 26.04.2021 before the respondent No.
1, which also came to be rejected by the respondent No. 2 by the
order dated 07.06.2021. That, against the order passed by the
respondent No. 2, the petitioner filed the Revision Application dated
06.07.2021 before the respondent No. 1, however, the respondent No.
1 has also rejected the Revision Application of the petitioner by the
order dated 21.09.2022 on the ground that the order passed by the
respondent No. 2 was not a penalty order but, it was only on the
ground of delay. That, on receipt of the order dated 21.09.2022, the
petitioner immediately submitted the Review Application to the
respondent No. 1 on 20.10.2022 and requested to consider the
reasons stated by the petitioner in the memo of Revision Application.
5. Being aggrieved and dissatisfied with the impugned order dated
05.04.2021 passed by the respondent No. 2 as well as the order dated
21.09.2022 passed by the respondent No. 1, the petitioner has
preferred this petition.
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6. Heard Mr. H.R. Prajapati, learned counsel appearing on behalf of
the petitioner and Ms. Nirali Sarda, learned Assistant Government
Pleader, appearing on behalf of the respondents - State Authorities.
7. Learned counsel Mr. Prajapati has submitted that the impugned
orders passed by the respondents are illegal, erroneous and unjust
and against the principles of natural justice and therefore, the same
are required to be quashed and set aside. He has submitted that the
respondent No. 2 has committed a grave error in passing the
impugned order dated 05.04.2021, as there was no delay in filing the
appeal against the cancellation of license vide order dated
11.05.2018. He has submitted that the respondent No. 2 has failed to
appreciate that when the order dated 11.05.2018 was passed by the
respondent No.3, the petitioner was in judicial custody in connection
with the FIR registered against him, which was well within the
knowledge of the respondent No. 3, since the show cause notice was
served upon the petitioner in jail and therefore, the impugned order
dated 11.05.2018 was not served upon the petitioner in jail when the
petitioner was in custody. He has submitted that after the petitioner
was released on bail in pursuance of the order dated 28.08.2018
passed by this Court in Criminal Misc. Application No. 14953 of 2018,
the petitioner was never served with the order of cancellation of
license dated 11.05.2018 and the petitioner was supplied with the
said order dated 11.05.2018 only after the petitioner made RTI
application dated 18.12.2020 and the copy of the order dated
11.05.2018 came to be supplied to the petitioner vide RTI reply dated
01.01.2021 which was received by the petitioner on 02.01.2021 and
therefore, on receipt of the order dated 11.05.2018 on 02.01.2021,
immediately on 11.01.2021, appeal was filed by the petitioner before
the respondent No. 2 and thus, the appeal was within the period of
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limitation i.e. 30 days, however, without considering the said aspect,
the respondent No. 2 has passed the impugned order dated
05.04.2021, which is ex-facie illegal and bad in law. He has further
submitted that when the petitioner had filed the Revision Application
before the respondent No. 1 against the order dated 05.04.2021, the
respondent No. 1 has rejected the same on the ground that the
respondent No. 2 has not passed the order of any penalty but, it has
decided the appeal only on the ground of delay and thus, the
respondent no. 1 has not properly understood the scope and extent of
revisional powers and therefore, the impugned order passed by the
respondent No. 1 is illegal and bad in law. He has further submitted
that as per the provisions of law, appeal is required to be filed within a
period of 30 days from the date of receipt of the impugned order
passed by the licensing authority and the petitioner, upon receipt of
the order of cancellation of license dated 11.05.2018 on 02.01.2021,
immediately preferred the appeal on 11.01.2021 and thus, there was
no delay at all, however, the respondent No. 2 has failed to examine
such issue while passing the impugned order. Over and above the
grounds agitated in the memo of petition, learned counsel Mr.
Prajapati has urged that the present petition be allowed and the
impugned orders passed by the respondents authorities be quashed
and set aside.
8. As against that, learned AGP Ms. Sarda, appearing on behalf of
the respondents authorities has objected the present petition,
however, she was unable to controvert the fact that the petitioner was
in judicial custody when the impugned order was passed by the
concerned respondent authority and therefore, he was not aware
about the order passed by the respondent authority. Learned AGP Ms.
Sarda has therefore, urged that appropriate orders may be passed.
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9. I have heard the learned counsel appearing for the respective
parties and perused the material placed on record. I have also
considered the impugned orders passed by the respondents
authorities. It seems that the appeal was dismissed only on the
ground of delay as there was no power vested with the Appellate
Authority to condone the delay as stipulated in the statute. It is an
admitted fact that the petitioner was arrested and he was in judicial
custody and therefore, the order passed by the concerned authority
was not served upon the petitioner and after being enlarged on bail
by this Court, the petitioner came to know that the order for
cancelling license for fair price shop has been passed by the
respondent authority. Thereafter, the petitioner has immediately
applied for certified copy of the order, which was received by the
petitioner on 02.01.2021 meaning thereby, that the appeal was
preferred by the petitioner after more than 2 years but, under the
circumstances, the order was passed by the concerned respondent
authority without giving any opportunity of hearing to the petitioner. It
is also an admitted fact that the show-cause notice was issued against
the petitioner and it was served upon the petitioner on 22.03.2018 in
Lajpore Jail and the said show-cause notice was replied by the
petitioner from the Lajpore Jail only. Though this fact was brought to
the notice of the concerned respondent authority while passing the
impugned order, the respondent authority has not considered this
aspect and without giving proper and reasonable opportunity to the
petitioner, has passed the impugned order of cancelling the license.
Even the petitioner has also preferred Revision Application, which was
also not considered by the respondent authority. However,
considering the fact that the impugned order cancelling the license of
the petitioner was passed in absence of the petitioner without
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affording any opportunity of hearing, I am of the opinion that the
petition is required to be allowed and the matter is required to be
remanded back to the concerned authority for deciding the issue
afresh.
10. In the result, present petition is partly allowed. The impugned
order dated 05.04.2021 passed by the respondent No.2 as well as
order dated 21.09.2022 passed by the respondent No.1 are hereby
quashed and set aside. The delay caused in preferring the appeal is
hereby condoned and the matter is remanded back to the concerned
respondents authorities for deciding the issue afresh. The
respondents authorities are hereby directed to decide the issue
afresh, after giving proper and reasonable opportunity of hearing to
the petitioner and after considering the submissions and contentions
raised by the petitioner, in accordance with law. Rule is made
absolute to the aforesaid extent.
(HEMANT M. PRACHCHHAK,J)
Dolly
