Gujarat High Court
Wine Shop Through Partner Kalindi P. ... vs State Of Gujarat And Anr. on 13 December, 2001
Equivalent citations: (2002)4GLR3071
JUDGMENT Kundan Singh, J.
1. By means of this petition, the petitioner has sought for quashing and setting aside the impugned show-cause notice and the impugned order dated 11-9-2001 Annexure-N to this petition passed by the respondent No. 2 and for a direction not to take out any proceedings or refuse to renew the licences on the sole ground of any misrepresentation.
2. The petitioner is holding the licences issued by the licensing authority under the Bombay Prohibition Act, 1949 (for short "the act") and Bombay Prohibition Rules, 1953. The licence form F.L.-II was issued on 24-2-1981, and thereafter, another licence F.L.-I was issued on 21-1-1882 by the Superintendent of Prohibition and Excise, Vadodara and the said licences have been renewed from time to time and still the petitioner is holding the same. On 29-6-1988 the Superintendent of Prohibition and Excise, Vadodara issued a show-cause notice to the petitioner alleging that the licence has been obtained from the licensing authority by misrepresentation that partner of the petitioner firm is a retired army officer. It is also alleged that Shri Paramjitsingh Malhotra is not Ex-Army Officer. The petitioner was called upon to show-cause as to why the proceedings under the Act for cancellation of the aforesaid licences should not be taken. The petitioner approached before the State Government against the show-cause notice and the petitioner pointed out that the licences have been repeatedly renewed from time to time and there was no such requirement at the time of granting license to submit any such letter and even otherwise the petitioner was eligible to obtain the licences as applied for. On the basis of the submissions of the petitioner, the Deputy Secretary of the Prohibition Department submitted noting to the secretary of prohibition recommending that the notice issued to the petitioner be quashed and set aside as it has been issued after about 8 years and there was no requirement that F.L.-I and F.L.-II licences can be issued only to the retired Army Personnel. The Secretary, Prohibition Department, on the basis of the recommendations made by the Deputy Secretary approved on 2-9-1988 the noting made by the Deputy Secretary. Accordingly, the Prohibition Department sent a letter dated 12-9-1988 to the Superintendent, Prohibition and State Excise, Vadodara directing that the notice issued against the petitioner be dropped/discharged. The decision of the State Government was also approved by the then Prohibition Minister by the noting on the file dated 6-10-1988. Accordingly, the Superintendent of Prohibition and State Excise, Vadodara dropped/discharged the show-cause notice issued to the petitioner. On the basis of the allegations made in the show-cause notice dated 29-6-1988 the complaint (F.I.R.) was also lodged on 14-7-1988 and that was registered as Criminal Case No. 35 of 1988 against both the partners of the petitioner firm for the offences punishable Under Sections 120B, 199, 419, 420, 423, 468, 470 and 471 of the Indian Penal Code. The complaint was investigated by the I.O. of D.C.B. Police Station, Vadodara. However, in view of the decision taken by the State Government to drop/discharge the show-cause notice dated 29-6-1988 it was decided to withdraw the criminal proceedings and the file was placed before the Home Department for its approval to withdraw the criminal case filed against the petitioner. The then Chief Minister, who was holding the Home Department portfolio at the relevant time on 31-12-1988 approved the decision to withdraw the criminal case filed against the petitioner. The application dated 25-4-1989 was moved by the Assistant Public Prosecutor pursuant to the directions of the then Chief Minister praying for permission to withdraw the prosecution. The learned J.M.F.C, Vadodara permitted for withdrawal and disposal of the aforesaid criminal proceedings as withdrawn. The criminal case being Criminal Case No. 35 of 1988 was disposed of as withdrawn vide order dated 25-4-1989.
3. When the show-cause notice dated 29-4-1988 was issued to the petitioner, the petitioner had filed Civil Suit No. 356 of 1988 before the Civil Judge (S.D.), Vadodara challenging the show-cause notice and the application for interim injunction restraining the State Government from taking further proceedings pursuant to the show-cause notice was moved by the petitioner and the interim injunction was granted by the Civil Judge, (S.D.), Vadodara vide order dated 26-8-1988 restraining the defendants of that suit from suspending or cancelling the aforesaid licences granted to the petitioner. As the show-cause notice as well as criminal proceedings were discharged/withdrawn, the petitioner withdrew the aforesaid suit proceedings.
4. One Mr. Chandrakant Joshi objected to the discharge of the show-cause notice and withdrawal of the criminal case by the State Government and a letter was sent to the Governor of Gujarat, whereupon all the files of the Prohibition Department as well as the Home Department were called for by the Governor of Gujarat from the State Government and the files were scrutinized again thoroughly and examined the matter again. The Governor of Gujarat approved all the decisions of the State Government by his note dated 21-1-1989. This fact has not been specifically denied by the respondents in the affidavit-in-reply filed by them. Again one Jashpal Singh made similar allegations to the State Government against the petitioner and the files were again scrutinized by the then Prohibition Minister Mr. Makwana by his noting dated 22-3-1989 and by the then Chief Minister Mr. Chimanbhai Patel by his noting dated 30-3-1991 once again approved the decision to grant licences to the petitioner and to continue the licences and the decision to discharge the notice and withdrawal of criminal proceedings filed against the petitioner. This fact has also not been specifically denied by the deponent who has filed the affidavit-in-reply on behalf of the respondents.
5. Another show-cause notice was issued by the Superintendent of Prohibition and Excise, Vadodara on 22-10-1995 on the basis of certain irregularities calling upon the petitioner to show-cause as to why the petitioner's licences should not be cancelled. The petitioner challenged the show-cause notice by filing Special Civil Application No. 9118 of 1995 before this Court. By the Order dated 10-1-1995 the petition was disposed of as withdraw by observing that the authorities concerned shall act in accordance with law and in consonance with the principles of natural justice. The show-cause notice dated 22-10-1995 was challenged by the petitioner by preferring a Revision Application Under Section 138 of the Act before the State Government and that revision application was rejected by the Order dated 22-11-1995 by the State Government and that Order dated 22-11-1995 of the State Government was challenged by the petitioner by way of filing Special Civil Application No. 1001 of 1995 before this Court and that petition was disposed of by this Court vide Order dated 5-12-1995 with certain observations. The petitioner appeared before the Superintendent of Prohibition and Excise, Vadodara in the proceedings for cancellation of the licences. Pursuant to the show-cause notice dated 22-12-1995 the Superintendent of Prohibition and Excise passed the Order cancelling the petitioner's licenses and that Order was challenged by way of filing an appeal before the Director of Prohibition and Excise Under Section 137 of the Act and that appeal was rejected by the Director of Prohibition and Excise, Vadodara on 22-1-1996 holding that the petitioner has fraudulently obtained the aforesaid licenses by claiming that one Mr. Paramjitsingh Malhotra was an Ex-Army Officer and the said Director directed for the cancellation of the petitioner's licences. Against that Order of the Director of Prohibition and Excise, the petitioner filed Special Civil Application No. 755 of 1996 before this Court and the operation and implementation of the Order passed by the Director of Prohibition and Excise was stayed and the petition was admitted. Thereafter, on 12-2-1997 the petitioner sought leave to withdraw that petition with a liberty to file a Revision Application before the State Government Under Section 138 of the Act and accordingly this Court disposed of the petition as withdrawn with a liberty to the petitioner to file a Revision Application before the State Government, and thereafter, the Revision Application was filed before the State Government. The State Government vide its Order dated 15-4-1997 decided the said Revision Application filed by the petitioner allowing it in part and setting the Order cancellation of the petitioner's licences and imposing fine on the petitioner for the irregularities committed by the petitioner. Thus, the petitioner's contention that the licences of the petitioner cannot be cancelled was accepted by the Government and the petitioner was awarded penalty of fine for the alleged irregularities. Thus, the show-cause notice as well as the criminal proceedings were discharged and withdrawn respectively and the State Government refused to cancel or suspend the licences of the petitioner on the basis of misrepresentation of the facts while obtaining the licences.
6. Again, the show-cause notice dated 14-6-2000 was issued to the petitioner on the basis of the same cause of action and similar allegations as were made earlier in the proceedings as well as in the show-cause notice as to why the licences obtained by the petitioner on misrepresentation of the facts should not be cancelled. The petitioner challenged that show-cause notice dated 14-6-2000 in this Court by way of filing Special Civil Application No. 6034 of 2000 and that petition was disposed of vide the Order dated 4-9-2000 directing the petitioner to file a reply within 15 days before the authority concerned and directing the authorities concerned to decide the same in accordance with law with the observation that if any adverse Order is passed against the petitioner, that will not be implemented for a period of one month.
7. In Special Civil Application No. 6034 of 2000 the respondents filed an affidavit-in-reply suppressing the material relevant facts and made a false statement on oath that the show-cause notice was dropped on technical ground and the Superintendent of Prohibition and Excise had no jurisdiction to cancel the licences of the petitioner and this Court was deliberately misled by the deponent of the affidavit-in-reply filed in this Court which reveals the mala fide intention andulterior motive of the State Government to cancel the licences issued to the petitioner and to grant the same to other person. The matter was heard on 16-12-2000 but after about 9 months without informing the petitioner passed the impugned Order dated 11-9-2001 by the respondent No. 2 cancelling both the licences namely F.L.-I and F.L.-II.
8. Being aggrieved and dissatisfied by the Order dated 11-9-2001 the petitioner has filed the present petition mainly on the ground that the proceedings; against the petitioner are mala fide and colourable exercise of powers for ulterior motive of concealing the licences of the petitioner and the respondents have misused exercise of powers for ulterior motive in Order to grant the same to some other persons to whom they wish to oblige. The proceedings of cancellation of licences are not competent in view of the earlier proceedings initiated against the petitioner on the same grounds in which the show-cause notice was Ordered to be dropped after examining the merits of the various contentions raised by the petitioner and the criminal prosecution was also lodged for misrepresentation of facts and the same was also withdrawn. The Governor of Gujarat, the then Prohibition Minister and the then Chief Minister of Gujarat, after going through the material on record approved the directions of the State Government for withdrawal of the show-cause notice as well as the criminal proceedings initiated against the petitioner. The impugned Order is without jurisdiction and without any authority of law. The Order of the Director of Prohibition and Excise, Vadodara was modified by the State Government setting aside the Orders of me lower authorities cancelling the petitioner's licences. In absence of such power to review the earlier Orders of 1988 and 1985 cannot be reviewed or recalled by initiating fresh proceedings for cancellation of the licences. Thus, the impugned show-cause notice as well as the impugned Orders are without jurisdiction and are not sustainable in the eye of law.
9. During the period of 20 years, the respondents being aware about misrepresentation of fact and repeatedly renewing the licences granted to the petitioner, hence, are estopped from cancelling the licences of the petitioner on the ground of misrepresentation. The petitioner cannot defend the show-cause notice after 20 years as no record is available and the Government as well as private records are required to be destroyed after 10 years as per the Rules. Exercise of powers Under Section 54 of the Act for cancellation of licences after such unreasonable time is illegal and is not sustainable in the eye of law. If the composition is made by the State Government Under Section 104(1) of the Bombay Prohibition Act and if the payment is made by the person concerned, the composition shall be deemed to acquittal and in any case no case further proceedings can be taken against such person or property with reference to the same facts and the impugned action taken Under Section 56(4) of the Act is barred by the constitutional provisions as well as statutory provision of Section 104(2) of the Act. The petitioner has invested about 25 lacs and presently there is a stock of Rs. 25+7 lacs, total Rs. 32 lacs which will be rendered useless if the order of cancellation of licences operates. The petitioner has also obtained loan of about Rs. 5 lacs from State Bank of India in Savan Wines F.L.-I and Rs. 7 lacs in Wine Shop.
10. On behalf of the respondents, the under Secretary, State Government, Home Department, Sachivalaya, Gandhinagar, has filed an affidavit-in-reply stating therein that the petitioner made an application to the Superintendent, Prohibition and Excise on 9-9-1980 for obtaining the license in form F.L.-II and form F.L.-I for effecting retail sale of foreign liquor. That application along with other 16 applications were forwarded to the District Prohibition Committee of the State Government and all those applications were rejected. The petitioner made another application on 17-10-1980 to the State Government stating therein that her husband is an Ex-Army Officer who retired from the post of Major due to his health problem and as he was totally unemployed and her application for licence be given preference so that he could be self-employed. That application dated 9-9-1980 of the petitioner along with other 16 applications were rejected in the meeting was unanimously taken to recommend the case of the petitioner subject to the prior permission of the State Government. In this way, the petitioner was given preferential treatment over other 16 applications whose applications were rejected due to the fact that the petitioner's husband was the Ex-Army Officer. The State Government granted requisite permission for F.L.-II licence on 10-2-1981. Thereafter, on 24-2-1981, F.L.-I licence was also issued to the petitioner. It was only after taking into consideration that the husband of the petitioner was the Ex-Army Officer having health problem the decision was taken to provide self-employment to earn his livelihood by granting license to the petitioner. As such, the petitioner had no right much less the fundamental right to have the licence over about 16 applications similarly situated applicants. In the month of June, 1981, Mr. Paramjitsingh stated himself to be retired Major to the Superintendent of Prohibition and Excise, Vadodara to the effect that at the relevant time he was in Indian Army between 1962 to 1972 and retired therefrom as Major. Thus, licences F.L.-I and F.L.-II were granted by the State Government on 21-1-1982 to 21-12-1982 respectively. The petitioner made an application dated 14-11-1983 for inducting her husband Paramjitsingh Malhotra as her partner. Accordingly, on 17-1-1985 the State Govt. granted necessary permission in that behalf. The department received several complaints against the petitioner, and hence, necessary inquiry was made with the Army Authorities who reported that on verification of the records it was found that there was no officer serving in S-2/DGBR in the name of Mr. Paramjitsingh Malhotra during 1962-72 or in any units of the Board Road Organisation. Hence, the petitioner was called upon vide letter dated 28-3-1988 to furnish the particulars regarding her husband's army identity card number, amount of pension received and other relevant informations. The Superintendent of Prohibition and Excise, Vadodara issued show-cause notice dated 29-6-1988 calling upon the petitioner to produce the necessary documentary evidence to show that Shri Paramjitsingh Malhotra is a retired Army Officer, failing which it is stated that the licences would be liable to be cancelled. Against that show-cause notice dated 29-6-1988, the petitioner filed Civil Suit No. 356 of 1988 before the 4th Jt. Civil Judge (S.D.), Vadodara and obtained the stay Order. Criminal proceedings being Criminal Case No. 35 of 1988 was also registered before the D.C.B. Police Station, Vadodara Under Sections 120B, 199, 419, 420, 423, 468, 470 and 471 of the I. P. Code, followed by the charge-sheet filed in the Competent Court. The show-cause notice dated 29-6-1988 was dropped/discharged on technical ground of jurisdiction, followed by the withdrawal of the criminal prosecution also.
11. Learned Additional Advocate General stated that he has no concern in respect of the irregularities and that is not in question regarding the main matter. It is also stated that on receiving several complaints it was realized that the earlier decision dated 12-9-1988 dropping the show-cause notice dated 29-6-1988 was not on merits and the criminal proceedings were withdrawal on misinterpretation of law and the show-cause notice dated 14-6-2000 was issued by the respondent No. 1 State Government calling upon the petitioner to produce the authentic documentary evidence showing petitioner's husband is a retired army officer. Ultimately, it Cathie to be confirmed and by the Order dated 11-9-2001 both the licences granted to the petitioner were cancelled and the Order dated 21-9-2001 under challenge is proper, legal and valid for the reasons mentioned therein. It is denied that the Order is illegal, mala fide and issued in colourable exercise of powers. It is also denied that the licences have been cancelled on the basis of the proceedings for cancellation were initiated in 1995. The decision dated 12-9-1988 and the show-cause notice dated 29-6-1988 was taken on technical ground in view of the fact that the Superintendent of Prohibition and Excise, Vadodara had no jurisdiction to issue the same. It is also denied that the decision taken on 12-9-1988 on the basis of the contentions raised by the petitioner before the Deputy Secretary, State Government, the Prohibition Department. It is also stated as to how the petitioner could be able to know about noting of the Deputy Secretary, submitted to the Secretary and approval by the authority and about the information of the noting dated 6-10-1988 by the then Prohibition Minister approving the aforesaid decision dated 12-9-1988 was not on merit of the case. As such, no question arises for estoppel in law against the statutory powers Under Section 54(1)(e) of the Act the provisions attract the present case for cancellation of licences which were obtained by willful misrepresentation and fraud and the State Government is empowered to suspend or cancel the licences Under Section 54(3) of the Act. The show-cause notice issued by the State Government calling upon the petitioner to produce authentic documentary evidence showing that Mr. Paramjitsingh Malhotra husband of the petitioner is a retired Army Officer. After investigation, the charge-sheet was filed for the offence punishable under the aforesaid various Sections of the I.P. Code. The State Government withdrew the criminal proceedings under misconception of law. The State Government can move an application Under Section 482 of the Criminal Procedure Code before this Court with a prayer to quash and set aside the Order dated 25-9-1985 passed by the J.M.F.C. in Criminal Case No. 2367 of 1989 and this Court can issue suo motu notice for quashing of the said Order. It is also denied that the decisions were taken by the State Government after considering the merits and demerits of the alleged allegations and contentions of the petitioner. The decision dated 12-9-1988 for dropping the show-cause notice 29-6-1988 was taken on technical ground and not on merits. The petitioner is guilty of misrepresentation and fraud, the State Government is not barred by the doctrine of estoppel against any fresh proceedings regardless of lapse of time. Mr. Paramjitsingh Malhotra from the year 1988 till today has not furnished anything worth the name to show that the representation of the fact that he being the Ex-Army Officer was factually correct and true and the same was not false and frivolous. On the contrary, the deliberate attempt has been made by the petitioner to distract the attention of this Court from the hard reality by pleading estoppel and expiry of unreasonable period of twenty years from the issuance of the first show-cause notice. It is also denied that the proceedings pursuant to the show-cause notice dated 14-6-1988 are in the nature of review of the Order passed by the State Government in the year 1988 and 1995. The Order passed in the year 1995 by the State Government was with reference to the altogether different subject matter. The powers have been exercised by the State Government Under Section 54(3) of the Act on the merits of the case for cancellation of the licences after hearing the petitioner and that cannot amount to review of the decision taken in the year 1988 on technical ground and the powers of review are always inherent in the authorities for reviewing its own Order more particularly when wilful misrepresentation and/or fraud are exercised upon the authority. Even after long lapse of period of 20 years, the authorities were aware about the wilful misrepresentation of facts or fraud, the action of reviewing the licences every year despite the said knowledge can neither create an estoppel in favour of the petitioner nor can such aspects wipe off the unclean hands of the petitioner vitiated by wilful misrepresentation of facts and/or fraud. It is also denied that exercise of power is hit by Article 20 of the Constitution of India and Section 104(2) of the Act is not applicable to the present case.
12. The petitioner also filed rejoinder affidavit.
13. I have carefully considered the submissions made by the learned Counsel for the parties and perused the relevant papers on record of this case.
14. Before adverting to the contention raised by the learned Counsel for the parties and authorities cited by them in support thereof I think it necessary to make clear as to whether the authorities cited by them are applicable to the facts and circumstances of this case and what is legal proposition in respect thereof. The Apex Court in the case Prakash Amichand Shah v. State of Gujarat and Ors. reported in AIR 1985 SC 468 has held that the decision is not a statute or legislation but a decision of the Court. The Court should carefully ascertain the true principles laid down by the provisions of decision. A decision after takes its colour from the question involved in the case in which it is rendered. The scope and authority of a present should never be expanded unnecessarily beyond the needs of a given situation. In the case of Municipal Corporation of Greater Bombay and Ors. v. Thakral Anjali Deo Kumar and Ors. reported in AIR 1989 SC 114 the Supreme Court has held that any observation in a judgment has to be read and understood in the context of facts of that particular case in respect of which such observation has been made. Meaning thereby is that the decision of a Court should not be followed blindly and it has to be carefully considered as to whether the facts and circumstances of the case are exactly identical or not and the decision which has the issue has been considered and decision has been rendered on the material on record.
15. The contention of the learned Counsel for the petitioner is that the first show-cause notice dated 29-6-1988 based on the ground of misrepresentation and fraud has been adjudicated upon by the Order dated 12-9-1988 and the said show-cause notice has been dropped/discharged after receiving the reply of the petitioner. No successive adjudication is permitted on the same ground in law. Therefore, the second show-cause notice 14-6-2000 which is admittedly on the same ground of misrepresentation and fraud is wholly without jurisdiction and void and it could not have been adjudicated upon, and therefore, the impugned Order of cancellation of licences based on the same ground is wholly void and without jurisdiction on the basis of the principles of res judicata, estoppel and/or equity. Learned Counsel for the petitioner has relied upon the decision of the Karnataka High Court .
16. It is also contended that the contention of the respondents is that the earlier show-cause notice was dropped/discharged on the technical ground and not on merits, is incorrect in view of the fact that the proceedings for cancellation of licences were initiated after lapse of long period of 8 years and during the said period of 8 years, the licences were renewed repeatedly and there was no requirement at the relevant time that F.L.-I and F.L.-II licences can be granted only to the retired army officer or personnel and the State Government found that the alleged misrepresentation of fact by the petitioner was not germane and material and it cannot form a basis for cancellation of licences or for initiating criminal prosecution. The proceedings by way of first show-cause notice were dropped/discharged by the State Government in the year 1988, and hence, the petitioner had withdrawn the suit in which the petitioner had challenged the show-cause notice and even stay was granted by the trial Court. Hence, this cannot be relied on again on the principle of equity. The powers Under Section 154(3) of the Act cannot be exercised by the State Government in view of the fact mat the previous proceedings have been initiated Under Section 54(3) of the Act and dropped/discharged by the State Government. The Director had exercised the powers for cancellation of the petitioner's licences on the same ground of fraud were exercised after the Director had utilised the same ground of fraud and misrepresentation and that was taken in revision before me State Government. Section 104(2) of the Act clearly bars any further action on the same ground. Therefore, the very ground was taken into consideration by the State Government and the matter regarding the cancellation of the licences was set aside and the matter regarding irregularities was compounded. Even the criminal proceedings were taken on the same ground of fraud and misrepresentation in obtaining the licences. The proceedings were withdrawn unconditionally by the State Government and that was based on the decision of the Government to withdraw the proceedings. No fresh adjudication can be made on the same set of facts and grounds. Article 20 of the Constitution of India and the provisions analogous to the same make it clear that no person shall be prosecuted and punished for the same offence more than once. If any person cannot be prosecuted on the same ground, certainly the person cannot be given another show-cause notice on the same ground for adjudication. It is also contended that the superiorvisory powers have to be exercised within reasonable time the impugned notice for adjudication given after 21 years does not give effective right to the notice to defend herself. On that ground also the present proceedings are not maintainable. Even if it is assumed that the notice was dropped on technical ground, the technicality could have been removed and fresh proceedings could have been taken at that time only. He relied on the decision of the Apex Court in the case of State of Gujarat v. Patel Raghav Natha and Ors. reported in 1969 GLR 992 (SC), wherein it has been held as under:
It seems to us that Section 65 itself indicates the length of reasonable time within which the Commissioner act Under Section 211 Under Section 65 of the Code if the Collector does not inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This Section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading Sections 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the Order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations atleast within a few months from the date of the permission. In this case, the Commissioner set aside me Order of the Collector on October, 12, 1961, i.e., more than a year after the Order, and it seems to us that this Order was passed too late.
17. Learned Counsel for the petitioner also relied on the decision of the Karnataka High Court in the case of Associated Cement Companies Limited v. Union of India . In that case, two show-cause notices were issued by the authorities, first when the refund claim was made and after the replies were filed by the company in answer to the show-cause notice, Orders of adjudication were passed in favour of the company. It is not in dispute that the two Orders of adjudication had specifically examined the question as to whether Phase-II unit of the Company is a separate entity and entitled to the benefit. The authority had examined whether the doctrine of unjust enrichment is attracted to the claim for refund. The adjudicating authority had held in favour of the appellant company only, merely because, some officer in the Department did not like the decision, that cannot confer jurisdiction to issue the third show-cause notice. The issuance of third show-cause notice was without any jurisdiction and the exercise of powers was totally unjust and improper.
18. Learned Counsel for the petitioner further relied on the decision of this Court in the case of Jiviben Wd/o. Kalaji Bapuji v. State of Gujarat reported in 1998 (3) GLR 2567 : 1998 (2) GLH 556, wherein it has been held as follows:
The finding of the Tribunal that the suo motu proceedings in the instant case were initiated after unreasonable delay does not, therefore, call for any interference by this Court under Articles 226 or 227 of the Constitution of India.
19. Learned Counsel for the petitioner also relied on the decision of this Court in the case of Jadav Prabhatbhai Jethabhai v. Parmar Karsanbhai Dhulabhai , wherein it has been held as under:
The suit has been filed admittedly after period of limitation. As per the aforesaid decisions of the Supreme Court, that in a case of illegal, wrongful or ultra vires transaction or Order, a suit for declaration will not be governed by law of limitation would run afoul of Limitation Act. Statute of limitation has been intended to provide time-limit for a suit conceivable.
(i) That the suit filed by the original plaintiff is barred by limitation as the suit came to be instituted not within the period of three years from the date of attaining the majority by the last word-plaintiff No. 4 in view of the provision of Section 6 read with Section 8 and Article 60 of the Constitution of India.
(ii) It is rightly found by the trial Court and we affirm it that the respondents original defendants are the owners and the occupiers of the suit land and obviously upon the extinguishment of the right, if any, of the Limitation Act, the title of the original defendants has been perfected.
20. The Apex Court in the case of Mansaram v. S.P. Pathak and Ors. , wherein it is held as under:
When the power is conferred to effectuate a purpose, it has to be exercise in a reasonable manner. Exercise of power in a reasonable manner inheres the concept of its exercise within a reasonable time. Undoubtedly, no limitation is prescribed in this behalf, but one would stand aghast that a landlord to some extent in pari delicto could turn the tables against the person who was in possession for 22 years as a tenant. In such a situation, even though the House Allotment Officer was to reach an affirmative conclusion that the initial Entry 22 years back was an unauthorised entry and that failure to vacate premises till 9 years after retirement was not proper, yet it was not obligatory upon him to pass a peremptory Order of eviction in the manner in which he has done. In such situation, it would be open to him not to evict the tenant.
21. The Apex Court in the case of Joginder Kumar Butan v. R.P. Oberoi reported in AIR 1987 SC 1996, has held as under:
Apart from these things there is also another factor which weakens the objections raised by the appellant and denudes them of force and content. He has waited for the full term of the lease to raise objections about the respondent playing a fraud on the statute. He has failed to put forth these objections within a reasonable time after the permission was granted by the Rent Controller to impugn the Order on the ground of the alleged fraud perpetrated by the respondent. It was observed by this Court in J.R. Vohra v. India Export House that the remedy available to a tenant in a case where there was only a ritualistic observance of the procedure while granting permission for the creation of a limited tenancy or where such permission was procured by fraud practiced by the landlord or was a result of collusion between the strong and the weak, would be for the tenant approaching the Debt Controller during the currency of the limited tenancy itself for adjudication of his pleas as soon as he disclosed facts and circumstance that tend to vitiate ab initio the initial grant of permission and not to wait till the landlord makes his application for recovery of the premises after the expiry of the period fixed Under Section 21.
22. The Supreme Court in the case of State of Orissa and Ors. v. Brundaban Sharma and Anr. reported in 1995 Supp. (3) SCC 249, has held as follows:
When the revisional power was conferred to effectuate a purpose, it is to be exercised in a reasonable manner which inheres the concept of its exercise within a reasonable time. Absence of limitation is an assurance to exercise the power with caution or circumspection to effectuate the purpose of the Act or to prevent miscarriage of justice or violation of the provisions of the Act or misuse or abuse of the power by the lower authorities or fraud or suppression. Length of the depends on the factual scenario in a given case.
23. The Apex Court in the case of State of Rajasthan and Ors. v. D.R. Laxmi and Ors. reported in 1996 (6) SCC 445, has held as under:
The Order or action, if ultra vires the powers, becomes void and it does not confer any right. But the action need not necessarily be at naught in all events. Though, the Order may be void, if the party does not approach the Court within reasonable time, which is always a question of fact and have the Order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the Order was void.
24. The Supreme Court in the case of State of Punjab and Anr. v. Amrik Singh , has held "The suit which is filed after six years is clearly barred by limitation. The appeal, is therefore, allowed and the suit of the respondent is dismissed."
25. It is also contended fraud or misrepresentation if any was already detected in the year 1988 and it is not for the first time detected before issuance of the show-cause notice in the year 2000, doctrine of reasonable time is applicable since the impugned Order is void and null. It is further contended that the present proceedings initiated on the basis of the present show-cause notices are barred as repeatedly renewals of the licences every year after 1988 though fraud was detected in the year 1988, the petitioner has spent huge amount in establishing the business and running the same.
26. So, called reason of misrepresentation cannot furnish a ground for cancellation of licence for the following reasons:
(a) That the alleged misrepresentation was not of any material fact since it was already held so while adjudicating the first show-cause notice.
(b) Whether the husband of the petitioner was a retired military officer or not was not a consideration for grant or rejection of licence.
(c) Assuming that there was some irregularity the same has been condoned by imposing a fine of Rs. 15,000/- and the proceedings were dropped.
(d) The right, if any, to cancel the licence on such misrepresentation is waived by repeated renewals of lincense.
(e) If any proceedings were to be taken on the ground of misrepresentation or fraud it would be barred by limitation as admittedly the fraud is alleged to have been detected in the year 1988. Such a belated action after unreasonable time may be quashed by this Court. It becomes a voidable action which has to be avoided within a time-limit or within a reasonable time and it is not a void action. Even assuming that it is void it has to be avoided within a period of limitation or within reasonable time and it is not a void action.
27. On the contrary, the learned Additional Advocate General appearing on behalf of the respondents contended that the impugned Order under challenge is not passed by way of review of the earlier Order dated 12-9-1988, as earlier Order was passed not on merits, but on technical ground. Thereby the earlier show-cause notice being incompetent was dropped/discharged. While, the impugned Order dated 11-9-2001 was passed on merits of the case. It is also contended that the Order dated 11-9-2001 cancelling the petitioner's licences on the ground that the same were obtained through willful misrepresentation and fraud as by way of review the then Government is legally empowered to cancel the licences. If it is found that the same were obtained through the misrepresentation and fraud, such powers are inherent in the case of quasi judicial authorities and the act of obtaining licences on misrepresentation of particular fact though the same may not be a pre-requirement which borne out factually incorrect, amounts to wilful misrepresentation and fraud which vitiates the proceedings. He relied on the decision (i) this Court in the case of Amratlal Manilal Modi v. Cachraji Dalaji and Anr. reported in 1967 GLR 429, (ii) decision of the Supreme Court in the case of Busching Schmitz Private Ltd. v. P.T. Menghani and Anr. , (iii) decision of Supreme Court in the case of Indian Bank v. Satyam Fibres (India) Pvt. Ltd. (iv) decision of Supreme Court in the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. and Ors. .
28. The aforesaid decisions are in respect of the proceedings in which fraud committed on the Court or Tribunal by the parties in obtaining the Orders and it was held that the Orders on the basis of the fraud will be null and void and the Court/Tribunal will have inherent jurisdiction for recalling or reviewing that Order. As such, the aforesaid decisions have no connection with the issue in the present issue.
29. The next contention raised by the learned Add1. Advocate General for the respondents is that for getting the licences in question, it was strictly not necessary for the petitioner's husband being an Ex-Army Officer since the same was not the condition precedent for the licences, the same were issued solely on the said fraudulent representation, and therefore, such fraudulently obtained licences can be recalled at any time. He relied on the decision of the Apex Court in the case of Union of India and Ors. v. M. Bhaskaran reported in 1995 Supp. (4) SCC 100, wherein the employees obtained the service by producing bogus, forged casual labourer service cards and it was held that the respondents were guilty of misrepresentation and fraud perpetrated on the employer while getting employed in railway service and had snatched such employment which would not have been made available to them if they were not armed with such bogus and forged labourer service cards. In case that production of casual labourer service cards was prerequisite condition and on the basis of the production of forged and bogus casual labourer service cards, it was a clear fraud and misrepresentation due to pre-requisite condition. As such, this decision of the Supreme Court is not applicable in the present case as Ex-Army Officer was not a pre-requisite condition for obtaining the licences in question.
30. It is also contended by the learned Addl. Advocate General for the respondents that licences enjoyed by the petitioner for a number of years which were obtained through wilful misrepresentation or fraud cannot create any equity in favour of the petitioner nor can it create any estoppel against the Government. In this context, he has relied on the decision of the Supreme Court in the case of Fedco (P) Ltd. and Anr. v. S.N. Bilgrami and Ors. . This decision of the Supreme Court is also not applicable in the present case inasmuch as the question in issue was whether fair opportunity was afforded before cancelling the licences. He has further relied on the decision of the Supreme Court in me case of Kumari Madhuri Patil and Anr. v. Addl. Commissioner Tribal Development and Ors. reported in 1995 Supp. (3) SCC 241. In the aforesaid both the decisions, the candidates were required to produce SC/ST or O.B.C. certificate as their selection was to be made on the basis of the quota reserved for SC/ST or O.B.C. certificate and they produced false certificates showing themselves to be SC/ST or O.B.C. candidates. It was clear fraud committed by the candidates on the authorities concerned for obtaining service and production of those SC/ST or O.B.C. certificates was pre-requisite condition. While in the present case, to be Ex-Army Officer is not a pre-requisite condition. Therefore, aforesaid both the authorities are not applicable in the present case.
31. Learned Addl. Advocate General has further relied on the decision of the Apex Court in the case of State of U.P. and Ors. v. Maharaja Dharmander Prasad Singh . The question before the Apex Court was whether the authority having power to grant licence can cancel the licence in absence of express provisions, even obtained on fraud or misrepresentation. It was held by the Apex Court that the authority having power to grant license can cancel license even in absence of express provision of law even the licence obtained on fraud or misrepresentation. As such, this decision of the Supreme Court is also not attracted to the issue in dispute.
32. Learned Add1. Advocate General further relied on the decision of the Supreme Court in the case of S.B. Noronah v. Prem Kumari Khanna . The Supreme Court in this case, emphasised on strict compliance of law. If it is void the Executing Court is not debarred from holding so.
33. It is also contended by the learned Addl. Advocate that the validity of fraudulently obtained licences can be questioned at any time and it cannot lie in the mouth of the petitioner who is party to the wilful misrepresentation or fraud to get away with the licences in question. He relied on the decision of the Apex Court in the case of State of Orissa and Ors. v. Brundaban Sharma and Anr. reported in 1995 Supp. (3) SCC 249 wherein it has been considered that the delay cannot be pleaded for acquiring right or title. Moreover, the Order of Tehsildar was subject to the approval of Board of Revenue. Tehsildar granted "patta" which was subject to the approval of the Board of Revenue. After 27 years, the Board of Revenue has quashed and set aside the "patta" issued by Tehsildar. After 27 years, the Board of Revenue cancelled the same. The ground of the tenant that he acquired the right due to lapse of time on the part of the authorities for a period of 27 years cannot be pleaded. Even in the facts of this case, the Order was quashed and set aside by the Board of Revenue as it was being illegal as no approval was obtained from the authority concerned. Even after 27 years that Order was confirmed by the Supreme Court. He also relied upon the decision of this Court in the case of Patel Jividas Trikamdas and Ors. v. District Collector Mehsana and Ors. , wherein it has been held as follows:
It is a settled proposition of law that any action, transaction, decision or Order which is illegal and void ab initio is to be treated as non-est. The validity of such an illegal non-est Order could be questioned in any proceedings at any stage by anybody. The very nature of the non-est Order in its effect does not create any right title or interest. It being a void, it confers not any status or any right. It was found in the said decision that the Order of the Tehsildar was void. The Board of Revenue, was therefore, justified in quashing the said Order even after 27 years had lapsed since the grant of Patta by the Tehsildar in favour of the party. It was laid down by the Hon'ble Apex Court that once the Order is found in violation of the provisions of the law, it is illegal and void, and therefore, it is non-est for all purposes. It was, therefore, held that it cannot be said that the Board of Revenue exercised the power Under Section 38B of the said Act after an unreasonable lapse of time.
34. In the present case, the licences were issued on the ground that the petitioner's husband was Ex-Army Officer, was not pre-condition for granting the licences nor the same were illegal or void ab-initio as held in the aforesaid decision of the Supreme Court. As such, delay in that case had no consequence but, in the present case, delay in initiating the proceedings has some substantial effect.
35. Learned Add1. Advocate General has relied on the decision of the Supreme Court in the case of Sikkim Subba Associates v. State of Sikkim , wherein the principle of waiver has been considered and continuous wrong and defaults and continue to perform their part of the contract to their disadvantage and detriment and also further penalise them with damages for not doing so. When even dictates of common sense, reason and ordinary prudence would commend for rejecting the claim of the appellants as nothing but a gamble and vexatious.
36. In the above decision of the Supreme Court, the State of Sikkim had also banned lottery transaction. However, the State of Sikkim had not taken any action immediately, that cannot be said to have been waived action to be taken against the appellant association. However, the appellant continued requiring the State to permit them for continuous and also claimed damages for not having given permission for doing the same.
37. I have carefully considered the rival contentions raised by the learned Counsel for the rival parties. This is a case in which the licences were issued to the petitioner on 24-2-1981 and 21-1-1982. On 29-6-1988 the Superintendent of Prohibition and Excise, Vadodara issued the show-cause notice to the petitioner as to why the licences having been obtained from the licensing authority on misrepresentation and fraud, that the partner of the petitioner firm was a retired Army Officer, should not be cancelled. That matter was examined and F.I.R., was lodged on 14-7-1988 being Criminal Case No. 35 of 1988 against both the partners of the firm of the petitioner for the offences punishable Under Sections 120B, 199, 419, 420, 423, 468, 470 and 471 of the I.P. Code.
38. Now, let us know the procedure for adjudicating or decision on a particular aspect in the departments of the State Government. Firstly, a note giving out all the facts is prepared by the Superintendent of the department on the instruction and direction of the higher officer, that note is placed before the officer concerned for approval of that officer or to be placed before higher officer. If that officer approves the action or approves for placing the matter before higher officer. After going through the entire noting the higher officer endorsed the matter as approved and that note is signed by the higher officer. It cannot be said that higher officer approves and signs the note without applying his mind. Such approved note is called as decision or adjudication by the higher officer. After the note is signed by the higher officer, further action is taken in compliance with the approved note by the State Government the petitioner's licences have been repeatedly renewed and there was no requirement at all at the time of granting the licences in disputes as licences were to be given to the Ex-Army Officer/personnel and the matter was investigated by the Deputy Secretary to the Prohibition Department who submitted the noting to the Secretary of the Prohibition Department recommending that the notice issued to the petitioner should be quashed and set aside as it has been issued after lapse of eight years and there was no requirement that F.L.-I and F.L.-II licences can only be issued to the retired Army personnel. The Secretary, Prohibition Department, on 12-9-1988 approved the aforesaid noting of the Deputy Secretary, Prohibition Department and the Prohibition Department accordingly directed the Superintendent, Prohibition and Excise, Vadodara by the letter dated 12-9-1988 to discharge/drop the notices issued against the petitioner and the same have been dropped/discharged. It will be deemed to be the decision of the Government and it will not be deemed that the notice was discharged/dropped on the technical ground. Even if it is assumed that the notice was dropped/discharged on technical ground and it is unusual and unreasonable for the State Government to awake after lapse of 12 years and as such after lapse of 12 years licences could not be cancelled. It was also considered that there was no prerequisite condition or requirement for issuance of the aforesaid licences that the licence can only be issued to the Ex-Army Officer. This assertion of the petitioner has not been specifically and categorically denied by the Under Secretary in the affidavit-in-reply filed by him in this Court on behalf of the respondents. Correct facts have been brought to the notice of the Court. Source cannot be asked from the person how he had come to know about this fact unless the fact is false. If any suit or writ petition is withdrawn unconditionally no fresh suit or writ petition can be filed on the same facts and for the same cause of action except on the ground of fraud is committed. If the matter has been concluded by the authorities, the same fact cannot be agitated again after 12 years. Even if it is assumed that the impugned notice dropped/discharged only on the ground of incompetency of the authority issuing the same. It was necessary to mention in the Order dropping the notice that the notice has been Ordered to be dropped on account of competency of the authority issuing the licences. It is nowhere stated that the fact has been mentioned in the Order dropping the earlier notice. Secondly, what was the difficulty for the State Government after dropping the earlier impugned notice was dropped/discharged on the technical ground in issuing fresh show-cause notice and initiating the proceeding soon after passing the Order dropping the earlier notice. But the authority has waited for 12 years after passing the Order dropping the notice, for issuing the present notice knowing fully well that the licences were obtained by misrepresentation of facts and show-cause notice was incompetent.
39. So far as the criminal prosecution on the basis of the F.I.R. dated 29-6-1988 is concerned, it is stated by the learned Add1. Advocate General appearing for the respondents that after investigation the charge-sheet was submitted in the Court concerned, the prosecution was withdrawn on misconception of law as the notice has already been withdrawn and discharged. It is also asserted by the petitioner that the Government decided to withdraw the criminal proceedings launched against the petitioner. The Order was placed before the Home Department for its approval before actual withdrawal of the criminal case, the then Chief Minister holding the Home Department Portfolio at the relevant time on 12-9-1988 approved the decision to withdraw the criminal case pending against the petitioner. The application was moved by the learned Assistant Public Prosecutor on 25-4-1989 for permission to withdraw the criminal prosecution pending against the petitioner and the learned Chief Judicial Magistrate vide Order dated 25-4-1989 disposed of the case as withdrawn. In case, the Order of withdrawal of the pending criminal case against the petitioner was made by the State Government on misinterpretation or misconception of law, a review petition could have been filed before the concerned Court or an application could have been filed Under Section 482 of the Cr.P.C. before this Court against that Order or a writ petition of that purpose could have been filed before this Court for quashing the Order permitting to withdraw the criminal proceedings pending against the petitioner. After 12 years, the State Government is thinking to file an application Under Section 482 of the Criminal Procedure Code before this Court, which does not appear to be fair, proper and reasonable at all. As such, it cannot be said that though the notice was discharged/dropped that does not mean that the criminal prosecution could not have continued. It appears that the Government has already taken the decision to withdraw the show-cause notice as well as the criminal prosecution launched against the petitioner.
40. If on the file of the decision taken for dropping/discharging the show-cause notice, was placed before the then Chief Minister holding the Home Department portfolio, for withdrawal of the criminal prosecution against the petitioner, then, it cannot be said that the decision was taken by the Government on misconception of law and the show-cause notice was withdrawn due to incompetency of the authority. The relevant file and papers must have been carefully perused and examined by the department concerned and the then Chief Minister holding the Home Department portfolio gave approval for withdrawal of the criminal proceedings pending against the petitioner. Meaning thereby that the decision taken by the authority concerned dropping or withdrawing the show-cause notice was not only due to the reasons that the authority issuing the show-cause notice was incompetent. Secondly, the petitioner has challenged the show-cause notice before the Court of law by filing the suit proceeding in the competent Court where the operation of the show-cause notice was stayed by way of interim relief granted by the trial Court and as soon as the show-cause notice was dropped or withdrawn the petitioner had withdrawn the suit proceeding. The petitioner cannot file another suit on the ground that me authority who issued the show-cause notice was not competent in the eye of law. Thus, the right of the petitioner has been prejudiced and the proceedings neither can be directed to be restored by this Court at this stage nor he can file a fresh suit for challenging that Order, same show-cause notice and the authority concerned cannot escape from the liability saying that the earlier show-cause notice issued by the authority concerned was not competent for issuing that show-cause notice particularly when the State Government had taken decision to discharge/withdraw/drop the show-cause notice on other grounds.
41. The matter was once again examined by the State Government, when one Chandrakant Joshi raised objection to the withdrawal of show-cause notice as well as criminal case by the State Government and sent a letter to the Governor of Gujarat whereupon all the files of the Prohibition Department, were called for by the Governor of Gujarat from me Government and the said files were again scrutinized and examined thoroughly and the Governor of Gujarat State approved the decision of the State Government by the noting dated 21-1-1989 if all the proceedings for withdrawal of the show-cause notice and the criminal prosecution have been scrutinized by the Governor of Gujarat State, it cannot be presumed that the decision taken by the State Government was based on misconception and incompetency of the authority issuing the show-cause notice. Further, the matter was again considered and examined on the letter of Shri Jashpal Singh to the State Government. The then Chief Minister, Shri Chimanbhai Patel called for all the records and scrutinized and examined all the papers thoroughly, the Prohibition Minister by the noting dated 22-3-1989 and the men Chief Minister by the noting dated 31-3-1989 approved the decision of the State Government to grant the licences in favour the petitioner and the decision for continuing the licences and to drop the show-cause notice and criminal prosecution. Pursuant to the show-cause notice issued against the petitioner the matter has already been examined by the different authorities at different levels i.e., four times. Once again the matter was scrutinised by the State Government when me Director of Prohibition and Excise Department passed the Order cancelling the petitioner's licences. That Order was challenged by the petitioner before the State Government Under Section 138 of the Act. The Order of the Director, Prohibition and Excise holding that the petitioner has fraudulently obtained the licences by making misrepresentation and that Paramjitsingh husband of the petitioner is Ex-Army Officer was quashed and set aside by me Order dated 15-4-1997 and irregularities were compounded.
42. Thus, in the facts stated above, it cannot be said that the petitioner's case has not been examined carefully by the authorities concerned. It cannot be considered that after dropping the earlier show-cause notice in the year 1988, fresh show-cause notice could have been issued again against the petitioner for cancellation of me licences to the petitioner on the basis of the misrepresentation or fraud committed by the petitioner. In the present case, the issuance of fresh show-cause notice for the same cause of action which has show-cause notice for the same cause of action which has also been examined and the decision has been taken by the several different authorities is illegal and is not sustainable in law. In case, such decision has been taken in the year 1988 and 1989 by the different authorities that the show-cause notice was not justified and that criminal proceedings initiated against the petitioner were not maintainable and the show-cause notice along with the criminal proceedings were withdrawn by the Government itself, the authority cannot be said to be justified in issuing fresh show-cause notice and initiating the same proceedings in respect of the same cause of action in the year 2000 even there is no bar for taking or initiation of the criminal prosecution. However, the law expects that the action should be taken within a reasonable time and 12 years does not come within the reasonable time alleging that the authority who issued the show-cause notice in the year 1988 was not competent. It is not the case of the respondents that the authorities came to know in the year 2000 that the petitioner obtained the licenses by misrepresentation of facts.
43. Even the State Government is not barred by any Rule, Regulation, Statute or Law to initiate the criminal proceedings against the petitioner or there is no estopped against the Government or even there is no limitation for taking such action. But there must be some finalisation of the proceedings where the authority concerned is knowing fully well the fact that licences have been obtained by the petitioner on misrepresentation of the fact though was not a mandatory requirement under any Rule, Regulation or any statutory provisions of law particularly show-cause notice dated 29-6-1988 appears to have been withdrawn on merits. In the interest of justice, the respondents should not be permitted to taken such action which has already been waived acquiescences by the authorities concerned for a period of 12 years though that earlier decision was taken by the department concerned even the highest and top authority of the State, i.e., the then Chief Minister as well as the Governor of Gujarat.
44. According to the learned Additional Advocate General, the earlier show-cause notice dated 29-6-1988 was issued by the Superintendent, Prohibition and Excise, who was not competent to issue the same and that show-cause notice was dropped/withdrawn due to incompetency of the authority though no copy of the order dropping/discharging the said show-cause notice has been placed on record of this case by either of the parties. As such, the competent authority is empowered to initiate the proceedings for cancellation of the licences issued to the petitioner by way of issuing a fresh show-cause notice dated 14-6-2000. Even the State Government has not barred by any Rule, Regulation, Statute and Law to issue fresh show-cause notice for cancellation of the licences and initiate criminal proceedings against the petitioner or even there is no estoppel against the Government even there is no limitation prescribed for taking such action. Let us examine whether show-cause notice dated 29-6-1988 was withdrawn/dropped only on the ground of incompetency or it was withdrawn/dropped on the merits of the case as well as on the ground of incompetency. The petitioner approached the State Government against the show-cause notice dated 29-6-1988 stating that the licences issued to the petitioner have been renewed repeatedly from time to time since 1980. There is no such requirement that the licenses should have been issued to only Ex-Army personnel or otherwise the petitioner was eligible for grant of licences. As it is done on the direction of the higher authority, the Deputy Secretary, prepared the note recommending that the licences issued to the petitioner should continue and show-cause notice dated 29-6-1988 should be withdrawn/dropped as it has been issued after about 8 years though there was no requirement for grant of licences could have been granted only to the Ex-Army Officer. Such note was placed before the Secretary, Prohibition Department who approved the same on 2-9-1988. Accordingly, the Prohibition Department sent the letter dated 12-9-1988 to the Superintendent, Prohibition and Excise, Vadodara for dropping/withdrawing the show-cause notice dated 29-6-1988. The decision of the State Government was approved by the Minister concerned on 6-10-1988. Accordingly, the show-cause notice dated 29-6-1988 was dropped/withdrawn unconditionally. On the basis of the decision of the State Government regarding the show-cause notice, it was decided that the criminal case pending against the petitioner should also be withdrawn. It was approved by the then Chief Minister holding the portfolio of Prohibition Department on 31-12-1988. On the instructions of the State Government, the learned A.P.P., moved an application for withdrawal of the criminal case pending against the petitioner before the Criminal Court concerned. The Chief Judicial Magistrate passed the Order dated 25-4-1988 disposing of the criminal case as withdrawn. It does not appear to be reasonable that all the persons from bottom to top i.e., the Superintendent, Deputy Secretary, Secretary Minister of the concerned Department and the Chief Minister and the Governor of the State having no sense and prudence blindly approved the note for withdrawal/discharge of the show-cause notice and criminal prosecution without applying their mind. Had the show-cause notice been incompetent, the ground of incompetency for withdrawal/discharge of the show-cause notice must have been mentioned in the Order atleast in the approval by the authority concerned. Atleast criminal proceedings in the Criminal Court could have continued. Discharge/withdrawal of the show-cause notice does not effect the pendency of criminal prosecution. Inevitable inference is that the show-cause notice and criminal prosecution were wimdrawn/discharged on the merits of the case though it may be incompetency of the show-cause notice might be one of the grounds on which the show-cause notice was dropped or withdrawn. No inference or presumption can be drawn that the show-cause notice was withdrawn/discharged only on the ground of its incompetency otherwise any fresh show-cause notice must have been issued soon after the show-cause notice was withdrawn/discharged. The respondents could not have waited for about 12 years for issuing fresh show-cause notice on 14-6-2000. Secondly, if any suit or writ petition is withdrawn/discharged unconditionally, second suit or writ petition cannot be filed or entertained for the same cause of action unless liberty is granted for the same purpose. Under Article 113 of the Limitation Act, limitation of 3 years is provided where no limitation is prescribed. Thus, in law, the suit proceedings could have been initiated within 3 years after knowledge of misrepresentation/fraud was committed. The authority concerned, is fully well knowing the fact even from 1988 that the petitioner obtained the licences by practising misrepresentation or fraud though there was no pre requisite condition or mandatory requirement under any provision of law that the licences could been issued only to the Ex-Army personnel. The respondents could not have waited for 12 years for issuing fresh notice on 14-6-2000 after the show-cause notice dated 29-6-1988 was indrawn/discharged unless the decision was taken by the State Government on merits. Thirdly, on the complaint of some person, me Governor of Gujarat State sent for all the files from the Prohibition Department, scrutinized and examined thoroughly and approved on 21-1-1989 the decision of the State Government for dropping/discharging the show-cause notice dated 29-6-1988. Once again, on the complaint of some other person the files were called for which were, examined thoroughly by the men Chief Minister of Gujarat State and he also approved the decision of the Minister of Prohibition Department. All the authorities stated above have permitted the petitioner to continue her business on the basis of the licences granted to her. Fourthly, in semi-judicial proceedings the State Government set aside the Order of Director of Prohibition Department cancelling the licences issued to the petitioner vide Order dated 15-4-1997. The aforesaid facts lead to irresistible conclusion that the show-cause notice dated 29-6-1988 was dropped/withdrawn on the merits of the case and only on the ground of its incompetency. Thus, the fresh show-cause notice dated 14-6-2000, the proceedings pursuant to the show-cause notice and the impugned Order cancelling the licences of the petitioner are vitiated, illegal and are not sustainable in the eye of law.
45. In the facts and circumstances stated above, the proceedings initiated on the basis of the fresh show-cause notice of the year 2000 for cancellation of the licences issued to the petitioner are vitiated and the Order dated 11-9-2001 passed by the respondent No. 2 at Annexure-N cancelling the licences which were issued to the petitioner are illegal and not sustainable in the eye of law. As such, the show-cause notice dated 14-6-2000 and the impugned Order dated 11-9-2001 Annexure-N to the petition deserve to be quashed and set aside.
Accordingly, this petition is allowed and the proceedings initiated on the basis of the show-cause notice dated 14-6-2000 and the impugned Order dated 11-9-2001 Annexure-N are hereby quashed and set aside. It is further directed that the authorities concerned will not cancel or refuse to renew the licences issued to the petitioner on the same grounds of show-cause notices issued earlier. Rule is made absolute with no Order as to costs.
* * * After pronouncement of this judgment, learned A.G.P., requested this Court to stay the operation, execution and implementation of the judgment for a period of two weeks to approach the higher forum.
In the facts and circumstances of the case, I do not find any good reason to stay the operation and implementation of this judgment. Accordingly, the request made by the learned A.G.P. is refused.