Bala Ram And Ors vs State Of Rajasthan And Ors

(1) By way of the present batch of petitions, the petitioners, holding authorization of running fair price shops under Rajasthan Foodgrains & Other Essential Articles (Regulation of Distribution) Order, 1976 (hereinafter referred to as 'the Order of 1976'), have laid challenge to the action of respondent-District Supply Officer, Nagaur, whereby pursuant to some inquiry, he has suspended their licenses and has also attached and authorized person(s) running fair price shops in the nearby area to deal with the goods kept in their shops and carry on the business. (2) While issuing notices in SBCWP Nos.4231/2020; 4253/2020; 4265/2020 and 4282/2020, this Court has granted interim orders on different dates, noticing the contentions of the petitioner(s) that before issuing order of attachment, no opportunity of hearing was allowed to them. The body of interim order dated 6.5.2020 passed in SBCWP No.4231/2020 is reproduced hereunder:

"Learned counsel for the petitioner has been heard through video conferencing.

It is submitted by learned counsel for the petitioner that by order dated 10.4.2020, the shop of the petitioner has been attached by alleging irregularity, however, neither before passing the said order nor after passing the said order, any inquiry has been held / charge -sheet issued to the petitioner.

Submissions have been made that the stock which was found at the petitioner's shop was identical as indicated in the Pos Machine, which is also reflective of the fact that there has been no irregularity on part of the petitioner.

In view of the submissions made, issue notice. Issue notice of the stay application also, returnable within a period of four weeks.

In the meanwhile and till further orders, effect and operation of the order dated 10.4.2020 (Annex.3) shall remain stayed. Attachment of petitioner's shop would be removed and the petitioner would be permitted to operate the shop in question."

(3) In all these matters (except three cases of this bunch), interim orders on the similar lines have been passed by this Court. (4) The respondents having filed application under Article 226(3) of the Constitution of India, have sought vacation of interim orders wherever the interim orders are operating and have opposed grant of interim orders, in the cases where no interim orders have yet been passed.

(5) Mr. Vishal Sharma and Mr. Manish Patel, learned counsel appearing for the petitioners submitted that in the remaining three cases also (SBCWP Nos.4285/2020, 4327/2020 and 4353/2020), interim order on the similar lines be granted to maintain parity.

(6) Mr. Rajpurohit, learned AAG raised preliminary objection that against the order of suspension, neither any opportunity of hearing is required to be given nor any inquiry report is contemplated to be supplied to the concerned dealer.

(7) He invited Court's attention towards the judgment dated 7.11.2019 (SBCWP No. 16723/2019: Smt. Shakuntala Vs. State of Rajasthan & Ors.); judgment dated dated 18.10.2019 (SBCWP No.15680/2019: Daulat Ram Vs. State of Rajasthan & Ors.), so also judgment dated 5.9.2019 (SBCWP No.11494/2019: Inder Chand Prajapat Vs. State of Rajasthan & Anr.) and argued that this Court has categorically and consistently held that as per the Order No.8 of the Order of 1976, opportunity of hearing is not required to be given. Strong reliance was placed on order dated 7.11.2019, relevant portion whereof is being reproduced hereinfra:-

"I have heard learned counsel for the petitioner, gone through the provisions and perused the judgments cited at bar.

The power to suspend and cancel the authorization is contained in Order 8 of the Order of 1976, which reads thus:

"8. Powers to suspend and cancel the authorisation.- If an authorisation holder or his agent or servant or any other person acting on his behalf contravenes any provision of this Order and conditon of authorisation, then without prejudice to any other action that may be taken against him under the Essential Commodities Act, 1955 (Central Act 10 of 1955) his authorisation may be suspended or cancelled by an order in writing of the Collector or any other officer authorized by the State Government and an entry shall be made in his authorisation relating to such suspension or cancellation.

(2) No order of cancellation shall be made under this order unless the authorization holder has been given a reasonable opportunity of stating his case against the proposed cancellation but during the pendency or in contemplation of proceedings of cancellation of authorisaton, the authorisation can be suspended for a period not exceeding 90 days without giving any opportunity to the authorisation holder of stating his case."

A perusal of the provision reproduced above leaves no room for ambiguity that there is no requirement of issuing any notice or affording an opportunity of hearing while passing an order of suspension. If Order 8(1) and 8(2) of the Order of 1976 are compared, it transpires that there is clear stipulation of providing opportunity of hearing before cancelling an authorisation, whereas in the event of suspension, there is no stipulation of providing an opportunity of hearing.

It is thus clear that the Central Government, framing the order has consciously obliterated requirement of observance of principles of natural justice. This Court is of the clear view that while suspending an authorization, rules of natural justice are not required to be adhered to and no notice is required to be given.

So far as other arguments are concerned, all of them are on merit of the suspension or with respect to the proceedings, which are yet to be taken by the respondents after due inquiry.

The judgments cited by learned counsel for the petitioner do not hold that prior to suspending an authorization, a notice is required to be given; they are, thus not relevant for the present cause.

This Court does not find it to be a case worth evoking interference.

The writ petition therefore, fails."

(8) Mr. Rajpurhoit, thus contended that in light of the judgments aforesaid, the writ petitions be dismissed as the interim orders have been granted by observing that opportunity of hearing is required to be given and inquiry report is to be furnished. Whereas, it is only at the time of passing final order, a dealer is required to be heard.

(9) Besides above, learned AAG submitted that a remedy of appeal has been provided under Order No.22 of the Order of 1976, the petitioners should avail the alternative remedy available to them, instead of pursuing the present writ petitions. (10) Mr. Vishal Sharma, learned counsel for the petitioners invited Court's attention towards facts from SBCWP No. 4285/2020 (Bala Ram Vs. State), while responding to the preliminary objections. He vehemently argued that the respondent-DSO has proceeded arbitrarily and though the order of suspension pursuant to inquiry dated 7.4.2020 had been purportedly passed on 8.4.2020, a direction was issued simultaneously to the inspector to send proposal. Both the order of suspension and the order of attachment were not served upon the petitioner. The petitioner came to know of the order of suspension, only on 21.4.2020, when the officers, alongwith the dealer to whom attachment/authorization to run the shop had been issued came to his shop, for the purpose of taking charge of the shop and the goods.

(11) Highlighting that the order of suspension came to be served upon the petitioner on 15.5.2020 - after filing the present writ petition, learned counsel for the petitioner argued that the petitioner should not be asked to avail remedy of appeal, particularly when, the order of suspension of authorization dated 8.4.2020 has been given effect to, without the same being served upon the petitioner.

(12) It was argued that the conduct of the respondent no.3 has been arbitrary and vindictive. Spread of pandemic Covid-19 for not serving the order of suspension, is nothing but a lame excuse. He argued that if the order of attachment/temporary change could be supplied to the dealer, to whom authorization on ad hoc basis has been given, why the respondents could not serve the same to the petitioner is a big question to be answered by the DSO. (13) Purport of his argument has been, that the order of suspension/attachment has not been intentionally supplied to the petitioners, so as to deprive them of their right of legal recourse. (14) Though learned counsel for the respondents endeavored to argue the case on merit also, however, having regard to the facts and circumstances of the case and more particularly, because the inquiry is yet to be concluded, this Court refused to enter into the arena of factual dispute of individual case(s) or validity or legality otherwise of the order of suspension on their merit, as the same might prejudice the pending inquiry and cause of either parties. (15) This Court is of prima facie view that in normal circumstance, the petitioners were required to avail remedy of appeal given under Order 22 of the Order of 1976, however, since the orders of suspension/attachment were not served upon the petitioners, they were justified in approaching this Court, while invoking its extra ordinary writ jurisdiction under Article 226 of the Constitution of India, while by passing the statutory remedy of appeal .

(16) That apart, given the fact that the inquiry pursuant to the inspection done at petitioners' fair price shop is yet to be concluded, if the petitioners are relegated to avail remedy of appeal, it would be an empty formality, particularly when this Court has already protected most of the petitioners' rights, by way of interim orders.

(17) This Court in principle accepts the argument of the Addl. Advocate General that neither any notice nor the preliminary report is required to be given while suspending authorization of a dealer. But in the facts of the present case, the District Supply Officer has attached the shops and goods and authorized another dealer to run the shop, without even serving a copy of the order of suspension. Hence, facts of the case at hands are entirely different. Action of the respondents cannot be countenanced by this Court.

(18) Hence, in the facts peculiar to the present cases, as noticed above, this Court deems it appropriate to dispose of all these writ petitions with a direction to respondent no.3 - DSO, Nagaur to conclude the inquiry as early as possible, preferably before 31 st July, 2020.

(19) It will be enjoined upon the competent authority to conduct the inquiry in fair manner while observing principles of natural justice, and adhering to the Order of 1976 and relevant law. The Inquiry Officer shall point out the discrepancies found at the shop of the concerned petitioner and elicit their response/explanation. (20) Needless to observe that the petitioners shall also co-operate in the enquiry and will neither create unnecessary hurdles nor will they thwart the enquiry.

(21) Till the enquiry is completed and final orders pursuant to inquiry in furtherance of suspension orders are passed, the order(s) of suspension and consequential attachment passed qua each of the petitioners shall remain in abeyance. Needless to observe that each of the petitioners shall be permitted to carry on his/her business or operations pursuant to the authorization letter, till the enquiry is concluded. (22) In case, the competent authority/DSO finds that the authorization/license of a particular dealer is required to be cancelled or any other just order is warranted, he will pass speaking order and serve the same upon such dealer either personally or by registered post AD. The order of punishment or cancellation shall be operative only after its service upon the concerned dealer.

(23) Needless to observe that petitioners, thereafter, will be free to take appropriate remedies available to them under law. (24) The stay applications also stand disposed of accordingly.