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IN THE HIGH COURT OF GAUHATI
A.K.GOSWAMI, J.
Md. Sirajul Islam, Son of Late Ayub Ali - Petitioner
Versus
The State of Assam, represented by the Commissioner & Secretary to the Government of Assam, Food and Civil Supply & Consumer Affairs & Ors. - Respondents
Writ Petition (C) No. 75 of 2017, 7026 of 2016
Decided On : 23-01-2017
Assam Public Distribution of Articles – Order, 1982 – Essential commodities Act 1955 – Section 15(2) – Appearing for all the respondents – Petitioner is a licensee under the Assam Public Distribution of Articles Order, 1982 and operating licence of the petitioner was suspended by an order issued by the Additional Deputy Commissioner, Nagaon in exercise of powers conferred under Clauses 15(1) and 15(2) of the 1982 Order for alleged violation of Clauses 9, 19 and 20 of the said Order – It appears from the said order that superior kerosene oil (quantity not mentioned) was seized as unclaimed property for violation of the provisions of Clause 31(D) and 20 of the 1982 Order as well as for violation of the condition Nos.7, 8(1) and (2) of the Order –Held, During the period of 90(ninety) days, no show cause notice is issued initiating a cancellation proceeding requiring the licensee to state his case, the suspension order would automatically spend its force –Underlying object is that the licensee must be given an opportunity to show cause and it is in that perspective the last portion of Clause 15(2), namely, "without giving any opportunity to the licensee of stating his case" has to be understood – Suspension cannot be treated as a mere ritual –Suspension order has to be passed on evaluation of the attending facts and circumstances, more particularly, having regard to the kind of allegations made against the licensee – Writ petitions stand disposed of.
Arup Kumar Goswami, J.
Heard Mr. H. Gupta, learned counsel for the petitioners. Also heard Mr. T.C. Chutia, learned State counsel, appearing for all the respondents in both the writ petitions.
2. The petitioner is a licensee under the Assam Public Distribution of Articles Order, 1982 (for short, "1982 Order") and operating under M/s. Lawkhowa Gaon Panchayat Samabai Samittee (GPSS). The licence of the petitioner was suspended by an order dated 12.09.2016 issued by the Additional Deputy Commissioner, Nagaon in exercise of powers conferred under Clauses 15(1) and 15(2) of the 1982 Order for alleged violation of Clauses 9, 19 and 20 of the said Order. It appears from the said order that superior kerosene oil (quantity not mentioned) was seized as unclaimed property for violation of the provisions of Clause 31(D) and 20 of the 1982 Order as well as for violation of the condition Nos.7, 8(1) and (2) of the Order.
3. The consumers of the Fair Price Shop of the petitioner were tagged with the Fair Price Shop of Md. Fazlur Rahman. Subsequently, by order dated 14.09.2016, in partial modification of the earlier order, consumers were tagged with the Fair Price Shop of one Mustt. Majeda Khatun, Secretary of Singimari BMSS.
4. The petitioner preferred an appeal before the Commissioner, Central Assam Division (CAD) under Clauses 29 and 30 of the 1982 Order against the said order of suspension.
5. On 04.10.2016, a show cause notice was issued to the petitioner requiring him to show cause as to why his retail licence shall not be cancelled. The show cause notice reads as under:-
"Ref : This office order No.KSS 19/2016/41 dated 12/09/2016.
Whereas on a visit by the area officer, FCS & CA, Kaliabor on 06/09/2016 it was found that you kept your shop locked without prior permission from appropriate authority. Hence, you have been charged with negligence of duty and violation clause 7 and 8(2) under the provision of APDA Order 1982.
Whereas it has been found that despite directing you through notice and telephonic conversation to be present at your shop on 08/09/2016, you did not comply with the orders. Hence, you have been charged with insubordination.
Whereas it has been found from statements of consumers that you have not been supplying PDS commodities to them in proper amount. This amounts to violation of the clause 19 under APDAO, 1982. Hence, you have been charged with misconduct.
Whereas it has been found that you have not submitted books of accounts to appropriate authority despite repeated instructions. This amounts to violation of the clause 26 and 3 (a) under APDA Order, 1982. Hence, you have been charged with misconduct.
Whereas it has been found that no price and stock board was displayed in your shop premises. This amounts to violation of the clause 18 under APDA Order, 1982. Hence, you have been charged with negligence of duties.
Hence, you are asked to show cause as to why your PDS Retail License will not be cancelled for the said charges. Your written reply must be submitted to the undersigned within seven days from the receipt of this notice."
6. The petitioner submitted his show cause reply on 25.10.2016.
7. WP(C) No.7026/2016 was filed by the petitioner praying for a direction to dispose of the appeal preferred by him under Clauses 29 and 30 of the 1982 Order and for setting aside the show cause notice dated 04.10.2016 issued to the petitioner pending adjudication of the statutory appeal filed by him against the order of suspension. By an order passed by this Court on 21.11.2016, the notice dated 04.10.2016 was suspended till the returnable date.
8. The petitioner approached this Court again by filing WP(C) No.75/2017 praying for a direction to the respondent authorities to revoke the order of suspension dated 12.09.2016.
9. Mr. Gupta has submitted that the appellate authority has fixed 27.01.2017 for the purpose of hearing of the appeal by notice dated 30.12.2016 issued by the Special Officer to the Commissioner of Central
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