Gujarat High Court
Vaghela Kanthubha Khanaji vs State Of Gujarat Through Joint ... on 3 August, 2016
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/8232/2009 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8232 of 2009
[On note for speaking to minutes of order dated 30/06/2016 in
C/SCA/8232/2009 ]
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VAGHELA KANTHUBHA KHANAJI....Petitioner
Versus
STATE OF GUJARAT THROUGH JOINT SECRETARY G S BOKHANI &
2....Respondents
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Appearance :
MR HR PRAJAPATI, ADVOCATE for the Petitioner.
RULE SERVED for the Respondents.
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CORAM : HONOURABLE MR.JUSTICE A.J.DESAI
Date : 03/08/2016
ORAL ORDER BELOW NOTE FOR SPEAKING TO MINUTES
Mr. H. R. Prajapati, learned advocate appearing for the petitioner has filed this note for speaking to minutes contending that while disposing of this petition vide order dated 30.6.2016 passed by this Court, in paragraph 8, it has been observed that 'such an exercise shall be completed as expeditiously as possible, preferably within a period of three years.' He states that there is a typographical error in mentioning the period as three years instead of three months.
Considering the above fact, in paragraph 8 of the order dated 30.6.2016, the word 'years' be substituted by the word 'months'. The said line in paragraph 8 reads as under :-
"Such an exercise shall be completed as expeditiously as possible, preferably within a period of three months."
Office is directed to correct the order dated 30.6.2016 accordingly. The present note for speaking to minutes is allowed.
(A.J.DESAI, J.)
Savariya
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 8232 of 2009 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J.DESAI Sd/-
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1. Whether Reporters of Local Papers may be NO allowed to see the judgment ?
2. To be referred to the Reporter or not ? NO
3. Whether their Lordships wish to see the fair NO copy of the judgment ?
4. Whether this case involves a substantial NO question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
=========================================================== VAGHELA KANTHUBHA KHANAJI....Petitioner Versus STATE OF GUJARAT THROUGH JOINT SECRETARY G S BOKHANI &
2....Respondents ========================================= Appearance :
MR HR PRAJAPATI, ADVOCATE for the Petitioner. MS VRUNDA SHAH, AGP for the Respondents. ========================================= CORAM : HONOURABLE MR.JUSTICE A.J.DESAI Date : 30/06/2016 ORAL JUDGMENT
1. By way of the present petition under Articles 226 of the Constitution of India, the petitioner has prayed as under :-
"(a) Your Lordships be pleased to issue a writ of certiorari or any other appropriate writ, order Page 1 of 7 HC-NIC Page 2 of 8 Created On Sat Aug 06 03:32:40 IST 2016 2 of 8 C/SCA/8232/2009 JUDGMENT and/or direction and be pleased to quash and set aside the order dated 7.3.2008 passed by the respondent No.3 cancelling the retail license of the petitioner and the order dated 8.5.2008 passed in Appeal No.1/2008 by the respondent No.2 and also order dated 31.1.2009 passed in Revision Application No.57/2008 by the respondent No.1 as being illegal, invalid, unjust, unfair, against the principles of natural justice and violative of Articles 14, 19(1)(g) and 21 of the Constitution of India.
(b) Your Lordships be pleased to stay the further operation, implementation and execution of order dated 7.3.2008 passed by the respondent No.3, order dated 8.5.2008 passed by the respondent No.2 and order dated 31.1.2009 passed by the respondent No.1 pending the admission, hearing, final disposal of this petition;
(c) Your Lordships be pleased to restrain the respondents and/or their Officers, servants and persons from opening new Fair Price Shop in place of petitioner's shop pending the admission, hearing and final disposal of this petition;"
2. Though served way back in the year 2009, the respondents have not filed any affidavit-in-reply.
3. The brief facts arise from the record are as under :-
3.1 That the petitioner was issued a license to run a fair Page 2 of 7 HC-NIC Page 3 of 8 Created On Sat Aug 06 03:32:40 IST 2016 3 of 8 C/SCA/8232/2009 JUDGMENT price shop under the provisions of Gujarat Essentials Article (Licensing, Control and Stock Declaration) Order, 1981. The said license was renewed time and again. Inspection was carried out at the shop from 20.2.2003 to 22.2.2003 and some irregularities found out by the authority. Thereafter, the respondent No.3 moved a proposal for passing the order of detention against the petitioner under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. Thereafter, order of detention came to be passed on 4.3.2003. The petitioner challenged the said order by way of Special Civil Application No.4661 of 2003 which came to be rejected on 6.6.2003 against which Letters Patent Appeal No.626 of 2003 was filed which was also rejected.
3.2 Thereafter, the respondent No.3 issued show-cause notice dated 10.9.2003. Reply was filed by the petitioner on 7.10.2013. Vide order dated 8.10.2013, the respondent No.3 cancelled the license and also passed an order of forfeiting the deposit amount of license. Against the said order, petitioner preferred appeal which was came to be rejected on 1.1.2004.
Against the said order, revision application also came to be rejected on 10.1.2005.
3.3 Being aggrieved by the said orders, the petitioner preferred Special Civil Application No.17537 of 2007 and this Court allowed the said petition vide order dated 17.9.2007 and this Court quashed the orders and observed that if the authority so wishes, it can issue fresh notice in that behalf and take appropriate action. Thereafter, a fresh show-cause notice was issued by the authority on 1.11.2007. The respondent gave his reply on 18.2.2008 and demanded those documents which have been Page 3 of 7 HC-NIC Page 4 of 8 Created On Sat Aug 06 03:32:40 IST 2016 4 of 8 C/SCA/8232/2009 JUDGMENT referred in the show-cause notice and which the authority intended to rely upon. Instead of supplying the said documents, the respondent authority passed the order dated 7.3.2008 by which the license of the petitioner was cancelled and forfeited the deposit amount. Against the said order, appeal was preferred which came to be dismissed vide order dated 8.5.2008 and the revision application against the said order also came to be rejected on 31.1.2009.
3.4 Hence this petition.
4. Mr. H. R. Prajapati, learned advocate appearing for the petitioner would submit that though the petitioner had requested the respondent authority to supply the documents which are referred in the notice, however, instead of supplying the same or responding to the request, the impugned order came to be passed. He would further submit that the State Government has issued guidelines whereby it is made clear that concerned Officer himself, while issuing show-cause notice, has to annex documents on which reliance is placed. He would further submit that Clauses No.8, 9, 10 and 11 of the Gujarat Essentials Article (Licensing, Control and Stock Declaration) Order, 1981 provide for procedure to be followed. He would further submit that Clause 9 (C) read with 10 ((B), (4) makes it clear that authorities are bound to supply the documents like Panchnama, statements recorded at the time of inquiry and all the relevant documents and the same should be attached with the show-cause notice. He would submit that in the present case, neither the documents are attached with the notice nor have been supplied though the same were demanded. Therefore, the impugned orders are bad, illegal and are required to be quashed and set aside.
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4.1 In support of his submissions, he relied upon the order
dated 19.10.2000 passed by the coordinate Bench of this Court in Special Civil Application No.7994 of 1998, order dated 27.11.2001 passed by the coordinate Bench of this Court in Special Civil Application No.3109 of 2001, order dated 23.2.2005 passed by the coordinate Bench in Misc. Civil Application No.1101 of 2004 in Special Civil Application No.7346 of 1997,
5. Ms. Vrunda Shah, learned Assistant Government Pleader has opposed this petition and submitted that when the petitioner was detained under the provisions of Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, all the documents were supplied to the petitioner and, therefore, there was no need to supply the same. She, therefore, would submit that the petition be dismissed.
6. I have heard learned advocates appearing for the parties. Perused the notice dated 1.11.2007, reply of the petitioner dated 18.2.2008 wherein the petitioner had demanded the documents. It is also not the case of the respondents that that the documents were attached with the notice given for cancellation of the license.
7. Clause (B) (4) and (C) of the Gujarat Essentials Article (Licensing, Control and Stock Declaration) Order, 1981 reads as under :-
"(B) Regarding taking actions under Section 6 and 6B of the Essential Commodities Act;
(4) The authorities copies of the Panchnama
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made at the time of enquiry, statements recorded at the time of enquiry and relevant documents of the record seized, should be attached to the show cause notice.
(C) Regarding taking of action under clauses 8, 9, 10 and 11 of the Essentials Article (Licensing, Control and Stock Declaration) Order, 1981;
The Licensing Officers should take into consideration the particulars shown in (B) above, while ordering cancellation of license or forfeiture of the amount of deposit under the aforesaid clauses."
7. Considering the above provisions which deal with the procedure and gives an opportunity to the concerned person to explain his case cannot be overlooked. The documents which were supplied when the detention order was passed way back in the year 2003 does not fulfill the requirements as referred in the Circular. This aspect has been considered in the unreported decision of the coordinate Bench of this Court wherein such a contention taken by the Government has been negatived. Hence, I do not agree with the submissions made by learned Assistant Government Pleader.
8. In the result, this petition stands allowed. The order dated 7.3.2008 passed by the respondent No.3, the order dated 8.5.2008 passed in Appeal No.1/2008 by the respondent No.2 and also order dated 31.1.2009 passed in Revision Application No.57/2008 by the respondent No.1 are quashed and set aside. Rule is made absolute to the above extent. The respondent No.3 is Page 6 of 7 HC-NIC Page 7 of 8 Created On Sat Aug 06 03:32:40 IST 2016 7 of 8 C/SCA/8232/2009 JUDGMENT hereby directed to decide the matter afresh after supplying all the necessary documents as per the Circular referred above and after giving an opportunity of hearing to all the parties. Such an exercise shall be completed as expeditiously as possible, preferably within a period of three years. Till the decision is taken by the respondent No.3, whatever arrangement is made to provide essential articles to the ration card holders be continued. Direct service is permitted.
Sd/-
(A.J.DESAI, J.) Savariya Page 7 of 7 HC-NIC Page 8 of 8 Created On Sat Aug 06 03:32:40 IST 2016 8 of 8