Anil Kumar Mishra v. Govt. of N.C.T. of Delhi & Ors

G.S. SISTANI, J. DECEMBER 17, 2013 'ssn' IN THE HIGH COURT OF DELHI AT NEW DELHI % JudgmentDeliveredon: 17.12.2013 [1J+ W.P.(C)948/2008&CM. no.1863/2008 RAJENDER PRASAD SURINDER KUMAR Through; Mr.NitinSehgal,Advocate TI-IEASSISTANCECOMMISSIONERFOOD & SUPPLIES Mr.SushilDuttSalwanand Mr.Neeraj Chaudhary,Advocatesfor respondents [2] W.P.(C)5157/2008& CM.No.9860/2008 AGGARWAL STORE Mr.PradeepGuptaandMr.SureshBharti, Advocates for petitioner GOVT. OF NCT OF DELHI & ANR Mr.SushilDutt SalwanandMr.Neeraj Chaudhary, Advocates for respondents [3] W.P.(C)8386/2007& CMNo.15850/2007 MAHENDER KUMAR Mr.Anurag Mangla, Advocate GOVT. OF N.C.T. OF DELHI & ORS. Mr.SushilDutt Salwanand Mr.Neeraj . Chaudhary, Advocates for respondents [4] W:P.(C) 8478/2007 SHOBHAKUMARI W.P.(C) 948/2008 & om. Mr.Sanjay Goel, Advocate. THE GOVT. OF NCT OF DELHI&ORS Mr.SushilDuttSalwanand Mr.Neeraj Chaudhary,Advocatesfor respondents [5] W.P.(C)8554/2007 ASHOK PROVISION STORE Mr.PradeepGuptaandMr.SureshBharti, ® Advocates for the petitioner. I versus f GOVT. OF N.C.t.OF DELHI&ORS. Mr.SushilDuttSalwanand Mr.Neeraj Chaudhary,Advocatesfor respondents [6] W.E.(C)8611/2007&16227/2007 ISHWARCHAND Mr.AnuragMangla,Advocate, o GOVT. OF M.C.T.OF DELHI&ORS. Mr.SushilDuttSalwanand Mr.Neeraj Chaudhary,Advocatesfor respondents [7] W.P.(C)8634/2007 SHIV STORE Mr.PradeepGuptaand Mr.SureshBharti, Advocates for the petitioner. a i GOVT. OF N.C.T.OF DELHI&ORS. Mr.SushilDuttSalwanand Mr.Neeraj Chaudhary,Advocatesfor respondents [8] W.P.(C)8635/2007 KANTADEVI Mr.PradeepGuptaandMr.SureshBharti, Advocates for the petitioner. ii W.P.(C)948/2008&ors. ^ t GOVT. OF N.C.T.OF DELIH&ORS. 'Mr.SushilDuttSalwanandMr.Neeraj Chaudhary,Advocatesfor respondents [9] W.P.(C)9456/2007&CM.Ko.17820/2007 AGGARWALSTORE Through; Mr.PradeepGuptaand Mr.SureshBharti, Advocates for the petitioner. GOVT. OF NCT OF DELHI& ORS 'Mr.SushilDuttSalwanand Mr.Neeraj Chaudhary,Advocatesfor respondents > [10] W.P.(C)9616/2007&CM.No.18087/2007 RIKHAB CHANDPROP. OF M/S J.N.U. CAMPUS STORE Mr.SanjayGoel, Advocate THE GOVT. OF NCT OF DEI^HI Mr.SushilDutt Salwanand Mr.Neeraj Chaudhary, Advocates for respondents [11] W.P.(C) 8820/2007 , » PAWAN RATION STORE Mr.Pradeep Gupta and Mr.Suresh Bharti, Advocates for the petitioner. GOVT. OF NCT OF DELHI ORS Mr.Sushil Dutt Salwan and Mr.Neeraj Chaudhary, Advocates for respondents [12] W.P.(C) 8985/2007 & CM.I^o.16923/2007 ASHOK KUMAR AGGARWAL Through; Mr.Sanjay Goel, Advocate. W.P.(C)948/2008& ors. Ho THE GOVT. OF NCT OF DELHI&ORS Through: 'Mr.SushilDuttSalwanand Mr.Neeraj Chaudhary,Advocatesfor respondents [13] W.P.(C)8714/2007&CM.No.16430/2007 DEVINDERGOEL GOVT. OF NCTOFDELHI& ORS Mr.SushilDuttSalwanand Mr.Neeraj Chaudhary,Advocates for respondents [14] W.P.(C) 8646/2007, JANTA STORE Mr.PradeepGuptaand Mr.SureshBharti, Advocates for the petitioner. GOVT. OF N.C.T. OF DELHI & ORS. Mr.SushilDutt SalwanandMr.Neeraj Chaudhary, Advocates for respondents [15] W.P.(C)8819/2007 & CM.No.16625/2007 SARASWATI GENERAL STORE Mr.PradeepGuptaandMr.SureshBharti, Advocates for the petitioner. GOVT. OF NCT OF DELHI & ORS Mr.SushilDutt Salwanand Mr.Neeraj Chaudhary, Advocates for respondents [16] ..W.P.(C)8264/2007& CM.No.15614/2007 ANIL KUMAR MISHR\ •- •Petitioner W.P.(C)948/2008&ors. Page^ of16 Mr.S.K.Chaudhaiy,Advocate. GOVT OF NCT. OF DELHI&ORS. Through; Mr.SushilDuttSalwanandMr.Neeraj Chaudhary,Advocatesfor respondents [17] W.P.(C)8046/2007&CM.No.15855/2007 SUMERCHANDMOHANLAL aTv' Through; Mr.SanjeevKumarGupta,Adv. r'm/T OF NCT OF DELHI Through-Mr.SushilDuttSalwanandMr.Neeraj Chaudhary,Advocatesfor respondents [18] W.P.(C)262/2008&CM.No.506/2008 SHRISHER SNGH , Through; Mr.AnilKumarJangra.Adv. GOVT. OF NCT OF DELHI&ORS • Through; Mr.SushilDuttSalwan.andMr.Neeraj Chaudhary,Advocatesfor respondents [19] W.P.(C)8523/2007 MEHARCHANDBALKISHORE Through; Mr.PradeepGuptaandMr.SureshBharti, Advocates for the petitioner. GOVT. OF NCT OF DELHI &ORS • Through; Mr.SushilDuttSalwan,andMr.Neeraj Chaudhary,Advocatesfor respondents [20] W.P.(C)8628/2007&CM.No.16252/2007 ram DASS GUPTAPROP. OF MOHANSTORE W.P.(C)948/2008& ors. Through; Mr.SanjayGoel,Adv. GOVT. OF N.C.T.OF DELHI&ORS. Mr.SushilDuttSalwanandMr.Neeraj Chaudhary,Advocatesfor respondents [21] WP.(C) 8644/2007 RAM CHANDERPAWAR Mr.NitinSehgal,Adv. THE ASSISTANTCOMMISSIONEROFFOOD AND SUPPLIESSOUTHDELHI Mr.SushilDuttSalwanand Mr.Neeraj Chaudhai-y,Advocatesfor respondents [22J W.P.(C)620/2008&CMAPPL.1214/2008 RAM AVTAR KAILASH CHAND FPS NO 8184 CIRCLE 2 Mr.Nitin Sehgal,Adv. ASSISTANT COMMISSIONER FOOD AND SUPPLIES DELHI AND ANR Mr.SushilDuttSalwanandMr.Neeraj Chaudhary, Advocates for respondents [23] W.P.(C) 291/2008 LAXMI STORE FPS Mr.Nitin Sehgal, Adv. THE COMMISSIONER FOOD AND SUPPLIES DELHI AND ANR. Respondents Mr.SushilDutt SalwanandMr.Neeraj Chaudhary, Advocates for respondents W.P.(C)948/2008&ors. Page6of16 [24] W.P.(C)5505/2008&CMAPPL.11408/2009 DAYA PRAKASH GUPTA Through; Mr. SanjayMishra,Advocate STATE ANDORS. Mr.SushilDuttSalwanand Mr.Neeraj Chaudhary,Advocatesfor respondents [25] W.P.(C)8645/2007 RADHEY SHYAM ANAND Mr.PradeepGuptaandMs.SoniaSharma, Advocates for petitioner GOVT. OF N.C.T. OF DELHI AND ORS. Mr.SushilDuttSalwanandMr.Neeraj Chaudhary,Advocatesforrespondents [26] W.P.(C) 530/2008 CHUM LAL Mr.PradeepGuptaandMs.SoniaSharma, Advocates for petitioner GOVT. OF N.C.T. OF DELHI AND ORS. Mr.SushilDuttSalwanandMr.Neeraj Chaudhary,Advocates for respondents [27] W.P.(C) 30/2009 M/S SHREE DURGA STORE Mr.PradeepGupta and Ms.SoniaSharma, Advocates for petitioner GOVT. OF N.C.T. OF DELEQ / W.P.(C) 948/2008 & ors. Mr.SushilDuttSalwanandMr.Neeraj Chaudhary,Advocatesfor respondents [281 W.P.(C)9502/2007 tilakraj GOVT.OFN.C.T.OFDELHI ANDORS. ^^ough: Mr.SushilDuttSalwanandMr.Neeraj Chaudhary,Advocatesfor respondents CORAM: HON'BLEMR. JUSTICEG.S.SISTANI Q S.STSTANT.'.T.(ORAL)

¶1Counsel for the partiessubmitthat facts in all these matters are sunilar. All thesepetitionsraiseacommonlegal question,whichcan be disposed of by a conmionorder.

¶2Rule. With the consentof counsel for the parties,the writ petitionsare takenup for finalhearingand disposal. As agreed,the facts of the Writ PetitionNo.948/2008are being noticed. The petitionerhas beenrunningaFairPriceShop sincethe year 1987. On

19.3.1997,the shopwas visitedandinspectedby officialsofdepartmentof respondentand some irregularitieswere found. Ashowcausenotice-cum-suspension memo dated 31.3.1997 was issued by the then Assistant Commissionerfor violation,as mentioned'andsimultaneouslyan FIR was lodgedagainstthe authorisation/licenceholder. Reply to the show cause notice was submittedand hearingwas grantedby the Department. Upon hearing,the AssistantCommissioner,Food and Supphespassedan order W.P.(C) 948/2008& ors. Through; Mr.SanjayGoel,Advocate St dated 25.4.1997 forfeiting entire security amount of Rs.500/- and thereafterrestoredthe licenceofthe petitioner. Afterpassingofthe order, the AssistantCommissionerdid not resort to any further penal action againstthepetitionerfor cancellationofthe fairpriceshop. Thereafter,the petitionercontinuedto carryon its businesson thebasisoflicencegranted by therespondent,withoutany complaintfromthe card-holders.

¶4In the meanwhile,in the criminalproceedings,initiatedupon registration of the FIR, a judgment dated 22.8.1998 was passed by which the petitioner,thoughconvicted,was releasedon probationfor one year and onpaymentofcostsofRs.500/-. Intheyear2007,afteragap ofmorethan 10 years,afresh show causenoticewas issuedon 10.9.2007callingupon thepetitionerto showcauseasto whythe licencebe notcancelled.

¶5After hearing, by an impugnedorder dated 1.2.2008the licence of the petitionerhas been cancelled. It is acommoncase ofthe petitionersthat the impugnedorder of cancellationpassed by the respondentis unfair, unjustandcontraryto law and liableto be setaside.

¶6Counsel for the petitioners fiirther submitted that while passing the judgment,the SpecialCourthad made it clearthatthe orderofconviction couldnot affectthe operationofthe fair priceshop.

¶7Attentionofthis courthas beendrawnto the judgmentdated22.8.1998,a copy of which has been placed on record. Concludingportion of the judgmentdated22.8.1998readsas under; "In respectof sentence,accused,SuridnerKumar,I directthat he shall be releasedon enteringinto a personalbond in the sum o Rs 5000/-withasecurityoflike amountandto appearand receive sentencewithinaperiodof 1years whenevercalledupon to do so and duringtimeto keep peaceand be ofgoodbehaviour. Accused, SurinderKumar shall also pay Rs.SOOA as costs of proceedings. This shouldnot affectoperationofF.P.S."

¶8It is submittedby counselfor the petitionersthatoncethe respondentshad W.P.(C)948/2008& ors. issuedshow causenotice-cum-suspensionmemo dated31.3.1997and after due hearing a penalty of forfeiture of security amount was imposed, petitionerscannot be punishedtwice for the same offence. The second argumentofcounselfor the petitionersis that in view ofSection12 ofthe Probation of Offenders Act, 1958, petitioners do not suffer any disqualification.The third argumentofcounselfor the petitionersis that the show cause notice issued and cancellationorder passed is liableto be quashed, as firstly the action initiatedhas become stale; and secondly, violation, if any, of the petitioners stands condoned as licences were renewed subsequentlyfor 10years and more.

¶9While counsel for the respondent submits that in addition to the administrative action, respondents were entitled to take action as per Clause 6 of Delhi Kerosene Oil (Export and Price) Control Order 1962 dated 5.12.1962, which reads as under: "6. Contravention of the terms and conditions of licence:

(1) If any licencee or his agent or servant or any other person acting on his behalf contravenes any of the terms and condition or directions or any provisions of this order then without prejudice to any other action that may be taken against licensee according to law, his licence can be suspendedby orderin writingby the Commissioner. Proviso to clause 6(1) order vide Dt. 15.2.80.

(2) Without prejudice to the provisions of sub-clause 1 if the Commissioner is satisfied that the licensee has contravened any of the terms and conditions of a licence or the directions issued under clause 3-D or any provision of this order and cancellation of his licence is called for, may after giving the licencee a reasonable opportunity of stating his case against the proposed cancellation by order in writing cancel his licence and shall forward a copy thereof to the licensee. W.P.(C) 941U2008& ors.

(3) Notwithstandinganything contains in this clause, where a licencee is convicted by a court of law for breach of the terms and conditionsof the licence or contraventionof the provisionof this order the licensingauthoritymay by order in writing, cancel his licence. Provided that no such order shall be passed until the appeal,ifany, filed againstsuch convictionis dismissedand whereno suchappealis fileduntilthe periodoflimitationfor filing an appeal expires."

¶10Counsel for the respondentalso relied on Clause 7 of the 1981 Order dated 12.01.1981, i.e. Delhi Specified Articles (Regulations of Distribution)Order, 1981 which reads as follows, and submitsthat once the petitioners had committed breach and he/she was. convicted the respondentswere boundto cancelthe licenceofthe petitioner: "7. Cancellation of authorization upon Conviction.- Notwithstanding anything contained in this clause where an authorized wholesaler or a fair price shop holder has been convictedby a court of law in respect of contraventionof any of the provisions of this Order or any other order made under Section 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, Counselfor the respondentsubmitsthat the delay is procedural,as in the period of 18 years, 24 AssistantCommissionershad been transferredin one zone, and in another zone 12 Assistant Commissioners were transferred in 10 years. W.P.(C) 948/2008&ors. 11 of16

¶12In responseto the above,the counselfor the petitionersstatedthatin case the respondentswereto rely,uponClause6ofDelhiKeroseneOil (Export and Price)ControlOrder 1902 and Clause7ofthe orderdated 12.1.1981, the same shouldhave been;!invokedby them within a shortestperiodof time from the date of the| cause of action and in any case within a reasonableperiod of time.; It is further contendedthat on account of delay, the respondentsare .festoppedfrom relying on Clause 6 of Delhi KeroseneOil (Exportand Erice)ControlOrder 1962 and Clause7ofthe Order dated 12.01.1981whichwould deem to have been givenup by the respondents,by virtueoftheirconduct;and on the contrary,vestedrights have been createdin favour of the petitionersby continuousrenewal of licenses,whichcannotbe takenaway atthisbelatedstage.

¶13I have heard counselfor the partiesand also perusedthe petitionas also the annexures fded along with the petitions.

¶14The basic facts are not in .disputethat the licenseswere grantedto the I petitionersto run fair priceishops/KeroseneOil Depots. Upon inspection havingbeen carriedout and some irregularitieshavingbeen found, show cause notice was issued; hearing was granted and the petitionerswere penalized by forfeiting their security amount or some administrative action was taken. Thereafter,licences of the petitionerswere renewed from time to time and only;afteragap ofmore than 10 years, fresh show cause for cancellationof the Fair Price Shop/KODswas issued and the licences were cancelledas accordingto the respondent,petitionershad incurreda disqualificationhavingbeen convictedby a criminalcourt, in terms of the 1962 and 1981'Orders.

¶15Admittedly,actionwas taken by the AssistantCommissioneragainstthe petitionersand a penaltyof forfeitureof securityamount was imposed. No furtheractionagainstthe petitionerswas taken for more than a period W.P.(C) 948/2008 & ors. S • '\ % of 10 years. Thus in my viewhavingnottakenactionfor 10 yearsand on the contraryhavingrenewedlicencesof the petitionerswould amountto condoningthe acts ofthe wrong doer; and after 10 years,the respondents are estoppedfrom takingactionagainstthe petitionershavingwaivedoff their rights by their own conduct, and the respondentsby their own act have condonedthe acts of the wrongdoer and are now estopped from changingtheir position.

¶16It is settledlaw thatastatutoryauthorityis requiredto act reasonablyand fairly.The Apex Courtin PowerControlAppliancesv. SumeetMachines

(P) Ltd.,(1994)2see 448 has held as under: ''Acquiescenceis sittingby, whenanotheris invadingthe rightsand spendingmoneyon it. It is acourseofconductinconsistentwith the claim for exclusive rights in a trade mark, trade name etc. It implies positive acts; not merely silence or inaction such as is involvedin laches.InHarcourtv. WhiteSr.JohnRommillysaid: "It is important to distinguish mere negligence and acquiesce. Therefore,acquiescenceis onefactofdelay.Iftheplaintijfstoodby knowinglyand let the defendantsbuildup an importanttrade until it had become necessaryto crush it, then the plaintiffswould be stopped by their acquiescence. If the acquiescence in the infringementamounts to consent, it will be a completedefence as was laid down inMouson (J.G.) & Co. v. Boehm. The acquiescence must be such as to lead to the inference ofa license to create a new rightin the defendantas was laiddown in Rodgersv. Nowill.

¶17Accordingly,the respondentshave not only sleptover its rightsand, thus, waivedit but also by agreeingto transferthe licensesin the name ofthe JV.P.(C) 948/2008 & ors. petitionershavereasonablyand fairlygivenarightto petitioners.Further, the respondentsin the presentpetitionshave givenareasonablebeliefto thepetitionersthattheirrightsandtitleis goodandshallnotbe disturbed.

¶18Consequentto raids carried out on different dates in different cases, proceedingswere initiatedagainstdifferentpersonsby respondents.The matters were pursued by the respondentsand the order(s) was/were so passed, were within the knowledge of the respondents. In case the respondents/departmentwas of the view that in addition to the administrativeactionlicenceofauthorizationis also to be cancelled,then the respondent/departmentWouldhave been well withinits rightsto take appropriateaction within a reasonableperiod of time. Whereas in the presentcases,the departmentin many caseshas onlytakenadministrative actionand passedordersof forfeitureof securitydeposit,but decidednot to take extremeactionofcancellationoflicence.At this belatedstage,the action of the respondenthas becomestale and more so the authorization of person who was actually convictedhas already been transferredto another, which transfer has been carried out by the respondents department and the new proprietor authorization holder has been continuously running KOD/ Fair Price Shop for years. The above narrationof facts would show that the departmenthas been extremely careless and casual in enforcingthe terms of the license, in accordance withlaw, and, thus,respondents'actioncannotbe sustained.

¶19Moreover, in my view the petitioners have not incurred the disqualificationofgrantoflicense/authorizationdue to conviction,as it is settledlaw that a person releasedon probationunder Section 12 ofthe Probationof OffendersAct shall not suffer any disqualification. In the case of Gulzarv. State of M.P., (2007) 1 SCC 618, it has been held as under: W.P.(C)948/2008&ors. Page14of16 ''....WhileSection 12 of the PO Act states that the personfound guiltyofan offenceand dealtwith underSection3 or 4ofthe PO Act shall not suffer disqualification, if any, attached to the convictionofan offenceunderany law...."

¶20Respondents counsel has placed reliance upon the report of Justice Wadhwa Committeeconstitutedby the Supreme Court of India. Due to the aforesaid facts and observations,respondents cannot at this stage get benefit of their inaction or the findings on the report.

¶21In view of the aforesaid,presentpetitionerscannot be penalized,at this stage even more so since the'publishedacts, in some cases, were never committed by the present license holders. A party is bound to act reasonablymore so a statutoryauthority.The authoritywas under a duty to act reasonably,and. withoutprejudiceto the rights of the petitioners. Giventhat the authorityhas itselfrenewedto license(s)of the petitioners, they themselveshave condoned the earlier convictions.Further by not acting within a reasonableperiod of time and by agreeingto renew the licensesin the name of petitionershave giventhe petitionersa reasonable cause to believe that a right has accrued in their favour. Petitioners are also entitled to the benefit of Section 12 of the Probation of Offenders Act. Accordingly,the impugnedorders of show cause notices/cancellation orders are quashed.

¶22Rule is made absolute. All the petitions and the applications stand disposed of in above terms. Parties shall bear their own costs.

¶23It is informed that in the case of WP(C)No.9502/2007 in addition to the order of cancellation, other proceedings are also pending. It is clarified that in addition to the order of cancellation, all other proceedings which are stated to be pending in the case of WP(C)No.9502/2007shall be W.P.(C) 948/2008& ors. Page15 of 16 decided unaffected by tlie orders passed by this court in the present proceedings. G.S. sistaniTx DECEMBER 17, 2013 'ssn' W.P.(C) 948/2008 & ors.

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Delivered on: 17.12.2013 + W.P.(C) 8264/2007 &CM.NO. 15614/2007 ANIL KUMAR MISHRA Mr.S.K. Chaudhary, Advocate. GOVT. OF N.C.T. OF DELHI & ORS. Mr.Sushil Dutt Salwan and Mr.Neeraj Chaudhary, Advocates for respondents CORAM: HON'BLE MR. JUSTICE G.S.SISTANI G.S.SISTANI, J. (ORAL) For Order see detailed judgment passed in the matter [W.P.(C) 948/2008^