Pawan Ration Store v. Govt. of NCT of Delhi & Ors

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. "

¶11Counsel 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 Assistant Commissioners were transferred in 10 years. W.P.(C) 94S/2008&ors. Page11 of16

¶12In responseto the aboye,the counsel for the petitioners stated that in case the respondentswere to rely upon Clause 6 of Delhi KeroseneOil (Export and Price) Control Order 1962 and Clause 7 of the order dated 12.1.1981, the same should have been invoked by them within a shortest period of I time from the date of the cause of action and in any case within a reasonable period of time. It is fiarther contended that on account of delay, the respondents are estopped from relying on Clause 6 of Delhi Kerosene Oil (Export and Price) Control Order 1962 and Clause 7 of the Order dated 12.01.1981 which would deem to have been given up by the respondents, by virtue of thek conduct; and on the contrary, vested rights have been created in favour of the petitioners by continuous renewal of licenses, which cannot be taken away at this belated stage.

¶13I have heard counsel for the parties and also perused the petition as also the armexures filed along with the petitions.

¶14The basic facts are not in dispute that the licenses were granted to the petitioners to run fair price shops/Kerosene Oil Depots. Upon inspection having been carried out and some irregularities having been 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 petitioners were renewed from time to time and only after a gap of more than 10 years, fresh show cause for cancellation of the Fair Price Shop/KODs was issued and the licences were cancelled as according to the respondent, petitioners had incurred a disqualification having been convicted by a criminal court, in terms pf the 1962 and 1981 Orders.

¶15Admittedly, action was taken by the Assistant Commissioner against the petitionersand a penalty,of forfeitureof security amount was imposed. No further action againstthe petitionerswas taken for more than a period W.P.fC)948/2008& ors. Page 12 of16 of 10 years. Thus in my viewhavingnot takenactionfor 10 years andon the contrary having renewed licences of the petitioners would amount to condoningthe acts of the wrong doer; and after 10 years, the respondents are estoppedfrom taking action againstthe petitionershaving waivedoff their rights by their own conduct, and the respondents by their own act have condoned the acts of the wrongdoer and are now estopped from changing their position.

¶16It is settled law that a statutory authority is required to act reasonably and fairly. The Apex Court in Power Control Appliances v. Sumeet Machines

(P) Ltd., (1994) 2 see 448,has held as under: .7 ''''Acquiescenceis sitting by, when another is invading the rights and spending money on it. It is a course ofconduct inconsistent with the claim for exclusive rights in a trade mark, trade name etc. It implies positive acts; not merely silence or inaction such as is involved in laches. In Harcourt v. White Sr.John Rommilly said: "It is important to distinguish mere negligence and acquiesce." Therefore, acquiescence is onefact ofdelay. If the plaintiff stood by Jmowingly and let the defendants build up an important trade until it had become necessary to crush it, then the plaintiffs would be stopped by their acquiescence. If the acquiescence in the infringement amounts to consent, it will be a complete defence as was laid down in Mouson (J.G.) & Co. v. Boehm. The acquiescence must be such as to lead to the inference ofa license to create a new right in the defendant as was laid down in Rodgers v. Nowill.

¶17Accordingly, the respondents have not only slept over its rights and, thus, waived it but also by agreeing to transfer the licenses in the name of the W.P.(C) 948/2008 & ors. petitionershave reasonablyand fairlygivena rightto petitioners.Further, the respondentsin the presentpetitionshave given a reasonablebeliefto thepetitionersthattheirrightsandtitleis good and shallnot be disturbed.

¶18Consequent to raids carried out on different dates in different cases, proceedingswere initiatedagainst differentpersons by respondents.The matters were pursued by the respondents and the order(s) was/were so passed, were within the knowledge of the respondents. In case the respondents/department was of the view that in addition to the administrative action licence of authorization is also to be cancelled, then the respondent/department would have been well within its rights to take appropriate action within a reasonable period of time. Wliereas in the present cases, the department in many cases has only taken administrative action and passed orders of forfeiture of security deposit, but decided not to take extreme action pf cancellation of licence. At this belated stage, the action of the respondent has become stale and more so the authorization of person who was actually convicted has already been transfeiTed to 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 narration of facts would show that the department has been extremely careless and casual in enforcing the terms of the license, in accordance with law, and, thus, respondents' action cannot be sustained.

¶19Moreover, in my view the petitioners have not incurred the disqualification of grant of license/authorization due to conviction, as it is settled law that a person released on probation under Section 12 of the Probation of Offenders Act shall not suffer any disqualification. In the case of Gulzar v. State of M.P., (2007) 1 SCC 618, it has been held as under: W.P.(C) 948/2008 & ors. ''....While Section 12 of the PO Act states that the person found guilty of an ojfence and dealt with under Section 3 or 4 of the PO Act shall not suffer disqualification, if any, attached to the conviction ofan offence under any law...."

¶20Respondents counsel has placed reliance upon the report of Justice Wadhwa Committee constituted by 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, present petitioners cannot be penalized, at this stage even more so since the published acts, 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 without prejudice to the rights of the petitioners. Giventhatthe 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 ofpetitionershave 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 impugned orders 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 informedthat in the case of WP(C)No.9502/2007in additionto the order of cancellation,other proceedingsare also pending. It is clarified that in additionto the order of cancellation,all other proceedingswhich are stated to be pending in the case of WP(C)No.9502/2007shall be W.P.(C) 948/2008&ors. p^ge15of16 decided unaffected by the orders passed by this court in the present proceedings. C - G.S. sistaniTX DECEMBER 17, 2013 'ssn' W.P.(C)948/2008&ors. p^ge16 of16

VP * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Delivered on: 17.12.2013 + W.P.(C) 8820/2007 PAWAN RATION STOI^ 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 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^ ^'^^^G.S.SISTANI,J. ' DECEMBER 17, 2013 'ssn' Signed By:RAM DATT Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. ( \ IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Delivered on: 17.12.2013 [1]+ W.P.(C) 948/2008 & CM, no.1863/2008 RAJENDER PRASAD SURINDER KUMAR Mr.Nitin Sehgal, Advocate TIIE ASSISTANCE COMMISSIONER FOOD & SUPPLIES Mr.Sushil Dutt Salwan and Mr.Neeraj Chaudhary, Advocates for respondents [2] W.P.(C) 5157/2008 &CM.NO.9860/2008 AGGARWAL STORE Mr.Pradeep Gupta and Mr.Suresh Bharti, Advocates for petitioner GOVT. OF NCT OF DELHI & ANR Mr.Sushil Dutt Salwan and Mr.Neeraj Chaudhary, Advocates for respondents [3] W.P.(C) 8386/2007 & CM No. 15850/2007 MAHENDER KUMAR Mr.Anurag Mangla, Advocate GOVT. OF N.C.T. OF DELHI & ORS. ..... Respondent Mr.Sushil Dutt Salwan and Mr.Neeraj Chaudhary,Advocates for respondents [4] W.P.(C) 8478/2007 SHOBHA KUMARI Mr.Sanjay Goel, Advocate. W.P.(C) 948/2008 & ors. THE GOVT. OF NCT OF DELHI& ORS Through; Mr.SushilDuttSalwanand Mr.Neeraj Chaudhary,Advocatesfor respondents [5] W.P.(C) 8554/2007 ASHOKPROVISION STORE Mr.PradeepGuptaand Mr.SureshBharti, Advocates for the petitioner. GOVT. OF N.C.T. OF DELHI & ORS. Mr.SushilDuttSalwanandMr.Neeraj Chaudhary,Advocatesfor respondents [6] W.P.(C)8611/2007& 16227/2007 ISHWAR CHAND Tlirough: Mr.AnuragMangla, Advocate. GOVT. OF N;C.T. of DELHI & ORS. Mi-.SushilDuttSalwanandMi'.Neeraj Chaudhary, Advocates for respondents [7] W.P.(C) 8634/2007 SHIV STORE Mi'.PradeepGuptaandMi'.SureshBharti, Advocates for the petitioner. GOVT. OF N.C.T. OF DELHI & ORS. Mr.SushilDutt Salwanand Mr.Neeraj Chaudhary, Advocates for respondents [8] W.P.(C) 8635/2007 KANTADEVI Mr.Pradeep Gupta and Mr.Suresh Bharti, Advocates for the petitioner. W.P.(C)948/2008& ors. GOVT. OF N.,C.T. OF DELIH & ORS. ..... Respondent Through; Mr.Sushil Dutt Salwan and Mr.Neeraj Chaudhary, Advocates for respondents [9] W.P.(C) 9456/2007 & CM.No. 17820/2007 AGGARWAL STORE Mr.Pradeep Gupta and Mr.Suresh Bharti, Advocates for the petitioner. GOVT. OF NCT OF DELHI & ORS Through; Mr.Sushil Dutt Salwan and Mr.Neeraj Chaudhary, Advocates for respondents [10] W.P.(C) 9616/2007 & CM.No. 18087/2007 RIKHAB CHAND PROP. OF M/S J.N.U. CAMPUS STORE Through; Mr.Sanjay Goel, Advocate THE GOVT. OF NCTOF DELHI Through; Mr.SushilDutt Salwanand Mr.Neeraj ' Chaudhary, Advocates for respondents [11] W.P.(C) 8820/2007 PAWAN RATION STORE Through; Mr.PradeepGuptaandMr.SureshBharti, Advocates for the petitioner. GOVT. OF NCT OF DELHI&ORS Through; Mr.SushilDutt Salwanand Mr.Neeraj Chaudhary,Advocatesfor respondents [12] W.P.(C) 8985/2007 & CM.No.16923/2007 ASHOK KUMAR AGGARWAL Through; Mr.Sanjay Goel, Advocate. W.P.(C)948/2008&ors. Page3of16 THE GOVT. OF NCT OF DELHI & ORS : Mr.Sushil Dutt Salwan and Mr.Neeraj Chaudhary, Advocates for respondents [13] W.P.(C) 8714/2007 &CM.NO.16430/2007 DEVINDERGOEL GOVT. OF NCT OF DELHI & ORS Mr.Sushil Dutt Salwan and Mr.Neeraj : Chaudhary, Advocates for respondents [14] W.P.(C) 8646/2007 JANTA STORE Mr.Pradeep Gupta and Mr.Suresh Bharti, Advocates for the petitioner. GOVT. OF N.C.T. OF DELHI & ORS. Mr.Sushil Dutt Salwan and Mr.Neeraj . Chaudhary, Advocates for respondents [15] W.P.(C) 8819/2007 & CM.No. 16625/2007 SARASWATI GENERAL 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 [16] W.P.(C) 8264/2007 & CM.No. 15614/2007 ANIL KUMAR MISHRA W.P.(C)948/2008 ors. p