1. WRIT PETITION (C) NO.75 OF 2017

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1 IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) 1. WRIT PETITION (C) NO.75 OF 2017 Md. Sirajul Islam, Son of Late Ayub Ali, Resident of Pub Singimari, PO: Singimari, PS: Rupahihat, District: Nagaon, Assam. -Versus-..Petitioner 1. The State of Assam, represented by the Commissioner & Secretary to the Government of Assam, Food and Civil Supply & Consumer Affairs, Dispur, Guwahti The Commissioner, Central Assam Division, Panbazar, Guwahati The Deputy Commissioner, Nagaon, Assam. 4. The Additional Deputy Commissioner, I/c Kaliabor Sub- Division, Nagaon, Assam. 5. The Sub-Divisional Officer (C), Kaliabor, Nagaon, Assam...Respondents 2. WRIT PETITION (C) NO.7026 OF 2016 Md. Sirajul Islam, Son of Late Ayub Ali, Resident of Pub Singimari, PO: Singimari, PS: Rupahihat, District: Nagaon, Assam...Petitioner -Versus- 1. The Commissioner & Secretary to the Government of Assam, Food and Civil Supply & Consumer Affairs, Dispur, Guwahti The Commissioner, Central Assam Division, Panbazar, Guwahati The Deputy Commissioner, Nagaon, Assam. WP(C) No.7026/2016 Page 1 of 6

2 4. The Additional Deputy Commissioner, I/c Kaliabor Sub- Division, Nagaon, Assam. 5. The Sub-Divisional Officer (C), Kaliabor, Nagaon, Assam...Respondents B E F O R E HON BLE MR. JUSTICE ARUP KUMAR GOSWAMI For the petitioner For respondent No.1 to 5 : Mr. H. Gupta, Advocate. : Mr. T.C. Chutia, Government Advocate. Date of hearing and Judgment & Order : 23 rd January, JUDGMENT & ORDER Heard Mr. H. Gupta, learned counsel for the petitioners. Also heard Mr. T.C. Chutia, learned State counsel, appearing for all the respondents in both the writ petitions. 2. The petitioner is a licensee under the Assam Public Distribution of Articles Order, 1982 (for short, 1982 Order ) and operating under M/s Lawkhowa Gaon Panchayat Samabai Samittee (GPSS). The licence of the petitioner was suspended by an order dated issued by the Additional Deputy Commissioner, Nagaon in exercise of powers conferred under Clauses 15(1) and 15(2) of the 1982 Order for alleged violation of Clauses 9, 19 and 20 of the said Order. It appears from the said order that superior kerosene oil (quantity not mentioned) was seized as unclaimed property for violation of the provisions of Clause 31(D) and 20 of the 1982 Order as well as for violation of the condition Nos.7, 8(1) and (2) of the Order. 3. The consumers of the Fair Price Shop of the petitioner were tagged with the Fair Price Shop of Md. Fazlur Rahman. Subsequently, by order dated , in partial modification of the earlier order, consumers were tagged with the Fair Price Shop of one Mustt. Majeda Khatun, Secretary of Singimari BMSS. WP(C) No.7026/2016 Page 2 of 6

3 4. The petitioner preferred an appeal before the Commissioner, Central Assam Division (CAD) under Clauses 29 and 30 of the 1982 Order against the said order of suspension. 5. On , a show cause notice was issued to the petitioner requiring him to show cause as to why his retail licence shall not be cancelled. The show cause notice reads as under:- Ref: This office order No.KSS 19/2016/41 dtd 12/09/2016. Whereas on a visit by the area officer, FCS & CA, Kaliabor on 06/09/2016 it was found that you kept your shop locked without prior permission from appropriate authority. Hence, you have been charged with negligence of duty and violation clause 7 and 8(2) under the provision of APDA Order Whereas it has been found that despite directing you through notice and telephonic conversation to be present at your shop on 08/09/2016, you did not comply with the orders. Hence, you have been charged with insubordination. Whereas it has been found from statements of consumers that you have not been supplying PDS commodities to them in proper amount. This amounts to violation of the clause 19 under APDAO, Hence, you have been charged with misconduct. Whereas it has been found that you have not submitted books of accounts to appropriate authority despite repeated instructions. This amounts to violation of the clause 26 and 3 (a) under APDA Order, Hence, you have been charged with misconduct. Whereas it has been found that no price and stock board was displayed in your shop premises. This amounts to violation of the clause 18 under APDA Order, Hence, you have been charged with negligence of duties. Hence, you are asked to show cause as to why your PDS Retail License will not be cancelled for the said charges. Your written reply must be submitted to the undersigned within seven days from the receipt of this notice. WP(C) No.7026/2016 Page 3 of 6

4 6. The petitioner submitted his show cause reply on WP(C) No.7026/2016 was filed by the petitioner praying for a direction to dispose of the appeal preferred by him under Clauses 29 and 30 of the 1982 Order and for setting aside the show cause notice dated issued to the petitioner pending adjudication of the statutory appeal filed by him against the order of suspension. By an order passed by this Court on , the notice dated was suspended till the returnable date. 8. The petitioner approached this Court again by filing praying for a direction to the respondent authorities to revoke the order of suspension dated Mr. Gupta has submitted that the appellate authority has fixed for the purpose of hearing of the appeal by notice dated issued by the Special Officer to the Commissioner of Central Assam Division, Nagaon. Placing reliance on Clause 15 of the 1982 Order, he submits that no licence can be suspended beyond the period of 90(ninety) days without giving any opportunity to the licensee to state his case and admittedly, in the instant case, 90(ninety) days time had elapsed from the date of suspension of the licence. It is also submitted by him that as the show cause notice dated was issued and as the appeal has not yet been disposed of, if the cancellation proceeding is allowed to be continued without disposal of the appeal, the petitioner may be severely prejudiced. He has submitted that the appellate authority may be directed to hear the petitioner and to dispose of the appeal preferred by him against the order of suspension immediately. 10. Mr. Chutia has, however, submitted that suspension can be resorted to only in contemplation of a cancellation proceeding or during pendency of a cancellation proceeding and, therefore, there can be no justification to stall the cancellation proceeding merely because the appeal of the petitioner against the order of suspension is pending. He, however, submits that the authorities will take steps to dispose of the appeal filed by the petitioner at the earliest. 11. It will be appropriate to extract Clause 15(1) and 15(2) of the 1982 Order in its entirety for better appreciation:- WP(C) No.7026/2016 Page 4 of 6

5 15.(1) If any licensee or his agent or servant or any other person acting on his behalf contravenes any of the terms and conditions of the licence, then without prejudice to any other action that may be taken under the Essential commodities Act 1955 (Central Act 10 of 1955) his licence may be cancelled or suspended by any Order in writing of the Licensing Authority and an entry will be made in his licence relating to such suspension or cancellation. (2) No Order of cancellation shall be made under this Clause unless the licensee has been given reasonable opportunity or stating his case against the proposed cancellation by but during the pendency or in contemplation of the proceedings of cancellation of the licence, the licence can be suspended for a period not exceeding 90 days without giving any opportunity to the licensee of stating his case. 12. Clause 15(1) of the 1982 Order postulates that cancellation or suspension is one of the actions that may be taken without prejudice to any other action that can be taken under the Essential Commodities Act, Clause 15(1) is in general terms indicating the courses of action that are available under 1982 Order in the event of contravention of terms and conditions of the licence. 13. Section 15(2) provides that no order of cancellation shall be made unless the licensee had been given reasonable opportunity of stating his case against the proposed cancellation. However, it also provides that during the pendency or in contemplation of a proceeding of cancellation, licence can be suspended. 14. Therefore, when a cancellation proceeding is pending, even if suspension was not resorted to prior to initiation of the cancellation proceeding, then also it is permissible to suspend the licence. Suspension is not an aim in itself and it is only a step in aid in the process of adjudication in connection with cancellation proceeding. 15. A perusal of the provision would go to show that a licence cannot be suspended beyond a period of 90(ninety) days without affording the licensee of stating his case. The intent is that a licence cannot be kept suspended beyond the period of 90(ninety) days, unless a notice is issued requiring the licensee to show cause as to why his licence shall not be cancelled. If during the period of 90(ninety) days, no show cause notice is issued initiating a cancellation proceeding requiring the licensee to state his WP(C) No.7026/2016 Page 5 of 6

6 case, the suspension order would automatically spend its force. The underlying object is that the licensee must be given an opportunity to show cause and it is in that perspective the last portion of Clause 15(2), namely, without giving any opportunity to the licensee of stating his case has to be understood. The Court hastens to add that in case of every contemplation or pendency of the cancellation proceeding, it is not necessary that recourse to suspension of the licence has invariably to be taken. Suspension cannot be treated as a mere ritual. The suspension order has to be passed on evaluation of the attending facts and circumstances, more particularly, having regard to the kind of allegations made against the licensee. 16. In view of the above discussion, I find no substance in the submissions of Mr. Gupta that unless and until the appeal preferred by the petitioner against the order of suspension is decided, the cancellation proceeding has to be halted. At the same time, an obligation is cast on the appellate authority to take prompt and immediate steps to hear and decide the appeal, as in a given case, the licensee may be able to justify that notwithstanding contemplation or initiation of cancellation proceeding against him, facts and circumstances do not warrant suspension of the licence. 17. In view of the above, the appellate authority is directed to decide the appeal at the earliest as the appellate authority had already fixed the date of hearing on The cancellation proceeding shall be concluded in accordance with law by providing adequate opportunity to the petitioner to present his case. 18. With the above observations and directions, these 2(two) writ petitions stand disposed of. J U D G E M. Sharma WP(C) No.7026/2016 Page 6 of 6