2001 Supreme(Guj) 817

Gujarat High Court
Judgename :KUNDAN SINGH
Thro Partner Kalindi.P - Appellant
Versus
STATE - Respondent
S.C.A. 8376 of 2001
Decided On : 12/13/2001

Headnote:(a) Administrative Law — Administrative action — After authorities waived by acquiescences where requirement of finalisation — When authorities concerned, knowing fully well the fact that licences have been obtained by petitioner on misrepresentation of fact withdrew show-cause notice dated 29.6.1988 on merit, cannot be permitted to take action after a period of 12 years — There must be some finalisation of proceedings.

       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 estoppel against the Government or even there is no limitation for taking such action. But there must he some finalisation of the proceedings where the authority concerned is knowing full 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Rule, Regulation or any statutory provisions of law particularly show cause notice dated 29.6.1988 appears to have been withdrawn on merits.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 take 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.

       [Para 43]

       (b) Administrative law — Administrative action — Even when no period of limitation prescribed, law expects initiation of action within reasonable time — It cannot be considered that after dropping the earlier show cause notice in the year 1988, fresh show-cause notice for the same cause of action could be issued against petitioner in year 2000 — A period of 12 years does not come within reasonable time.

       In the facts it cannot be said that the petitioners 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 the licences to the petitioner on the basis of the misrepresentation of fraud committed by the petitioner. In the present case, the issuance of fresh 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 years 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.

       [Para 42]

       (c) Constitution of India, 1950 — Art. 226 — Quashing of second show cause notice after withdrawal of the first on merits — Scope of — Contention that first show cause notice was dropped/withdrawn due to incompetency of authority issuing the same not acceptable in the facts of the case — No such inference could be drawn otherwise respondent could not have waited for 12 years for issuing fresh show- cause notice on 14.6.2000 — That apart if any suit or writ petition is withdrawn unconditionally second Suit or writ petition could not be filed or entertained for the same cause of action unless liberty is granted for same purpose — Limitation is of 3 years after knowledge of misrepresentation/fraud committed — Authority concerned knowing fully well the fact even from year 1988 that misrepresentation/fraud was practised to obtain licences respondent could not have waited for 12 years for issuing fresh notice unless earlier decision was on merits — On complaint Governor had sent for all the record and had permitted the petitioner to continue her business on basis of said licences granted to her — It is also on record that in semi judicial proceedings, State Government set aside the order of Director of Prohibition Department cancelling the licence issued to petitioner — Naration of facts indicates first show cause notice dated 29.6.1988 was dropped/withdrawn on merits and not only on incompetency — Hence, fresh second notice dated 14.6.2000 cancelling licence vitiated and illegal.

       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 Art. 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 prerequisite 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 withdrawn/discharged unless the decision was taken by the State Government on merits. Thirdly, on the complaint of some person, the 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 then 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 irresistable 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.

       [Para 44]