IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 9326 of 1999 For Approval and Signature: HON'BLE MR.JUSTICE D.N.PATEL ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- AMBIKA PROTINES Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 9326 of 1999 MR DM THAKKAR for Petitioner No. 1 MS ARCHANA RAVAL AGP for Respondent No. 1-3 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE D.N.PATEL Date of decision: 06/05/2004 ORAL JUDGEMENT 1. The petitioner has preferred this writ petition under Article 227 of the Constitution of India, challenging the revisional order passed by the Deputy Secretary, Food and Civil Supply Department, Gandhinagar on 17th July, 1999, whereby the order of the appellate authority is confirmed and the licences of the petitioners have been cancelled and the deposit amount of the petitioner has been forfeited. 2. The learned advocate appearing for the petitioner submitted that the petitioner was called upon by the concerned authorities of the respondents for producing the documents for the year 1995-96 as well as for the year 1996-97 but the petitioner could not produce the same because the said documents were lying with the Chartered Accountant of the petitioner. Initially, the documents were demanded on 17th June, 1997. Once again on 22nd January, 1998, the said record was ordered to be produced but again the petitioner maintained the same answer that the records are lying with its Chartered Accountant. Despite repeated demand of the said documents by the respondents for the aforesaid two years, the petitioner could not produce the same. Ultimately, the statement of Chartered Accountant Bharatbhai Karia, Junagadh was recorded on 18th February, 1998, wherein he has pointed out that he is having the record of the petitioner for the purposing of preparing audit report and the said record was for the period from 1st April, 1997 to 26th September, 1997 which has already been returned to the petitioner on 30th January, 1998. The said Chartered Accountant has further pointed out in his statement that he has never called for the record of the years 1995-96 and 1996-97. After recording the statement of said Chartered Accountant, the opportunity of being heard was given to the petitioner on several dates as referred in the order passed by the District Supply Officer, Junagadh which is produced at Annexure-B to the petition. Lastly, the petitioner had remained present on 3rd August, 1998 before the District Supply Officer, Junagadh and submitted that because of fire which took place at his office, the record has been burnt and therefore the petitioner was not able to produce the record for the years 1995-96 and 1996-97. The first authority below has not accepted the plea of the petitioner and it had arrived at the conclusion that the petitioner has committed grave misconduct by not producing the aforesaid documents though the same were having with the petitioner. It is also stated in the order of the first authority below that even on earlier occasion false and fabricated affidavits were produced for which F.I.R. bearing CR No.I - 119/97 was lodged against the petitioner with Junagadh City Police Station for the offences punishable u/s 193, 420 and 467 of the I.P. Code and thereby the District Supply Officer, Junagadh has arrived at conclusion that there is breach of the conditions no.9 and 10 of the licences of the petitioner. Hence, the same was cancelled. There were two licences of the petitioner namely licence no. 181 and 1081 and both the said licences were cancelled and deposit amounts of the petitioner were also forfeited by the order dated 18th August, 1998 passed by the District Supply Officer, Junagadh against which Appeal No. 30 of 1998 under the provisions of the Gujarat Essential Articles (Licensing, Control and Stock Declaration) Order,1981 (hereinafter referred to as "the Order, 1981" for short) was preferred before the District Collector, Junagadh. The said appeal was also dismissed by the District Collector, Junagadh vide his order dated 5th December, 1998. The appellate authority has also noted in its order that initial version of the petitioner that the record for the aforesaid two years was lying with its Chartered Accountant for the audit purposes. Subsequent plea raised by the petitioner was an afterthought and the same has not been accepted by the appellate authority. The aforesaid F.I.R. registered against the petitioner has also been considered and noticed by the Appellate Authority and accordingly the appellate authority by its order dated 5th December, 1998 has confirmed the order passed by the District Supply Officer, Junagadh. The petitioner challenged the order dated 5th December, 1998 passed by the Appellate Authority by filing Revision Application No.2 of 1999 before the revision authority i.e. the Deputy Secretary, Food and Civil Supply Department, Gandhinagar and the revision authority has dismissed the said revision application of the petitioner vide its order dated 17th July, 1999 and confirmed the orders passed by the aforesaid both authorities below. Against the said order of the revisional authority, the present petition has been filed by the petitioner. 3. The main contention of the petitioner is that due to the circumstances beyond the control of the petitioner, the petitioner could not produce the record for the years 1995-96 and 1996-97 as demanded by the first authority below. It is contended by the learned advocate for the petitioner that the fire had taken place at the office of the petitioner and hence the record was burnt and therefore no question arises for producing the record before the District Supply Officer, Junagadh by the petitioner. This aspect of the matter has not at all appreciated by the three authorities below. Next contention of the learned advocate for the petitioner is that there is nothing in the conditions no. 9 and 10 of the petitioner's licences which compels the petitioner to produce the record as demanded by the District Supply Officer, Junagadh and therefore the conclusion arrived at by the three authorities below are de-horse to the law and hence the orders passed by the authorities below deserve to be quashed and set aside. 4. Learned Assistant Government Pleader submitted that the petitioner was legally duty bound to maintain required record and as and when the said record is ordered to be produced by the competent authority, the petitioner is duty bound to produce the same. The documents/record may be pertaining to the stock, quantity of the essential articles and A/c. etc. Conditions No. 9 and 10 of the petitioners' licences reads as under : "9 - The licence holder shall, except when specially exempted by the State Government or by the licencing authority in this behalf, issue to every customer a correct-receipt or invoice, as the case may be, giving his own name, address and licence number, (if any) of the purchaser, the date of transaction, the quantity of essential articles sold, the price at which it is sold and the total amount charged and shall keep a duplicate of the same to be available for inspection on demand by the licencing authority or any other officer authorised by it in this behalf : Provided that it shall not be necessary to issue such receipt or invoice in respect of retail sale costing not more than fifteen rupees unless demanded by a customer but true and correct account of such sale showing therein the date of sales, quantity of essential articles so sold and price charged shall be maintained. 10 - The licence holder shall given all facilities at all reasonable time, to the licencing authority or any officer specified in or authorised under clause 26 of the Order for the inspection of his stocks and accounts at any shop, godown or other place used by him for the storage, sale or purchase of essential articles and for taking of samples of essential articles for examination." 5. It is also contended by the learned advocate for the respondent that though the record for the years 1995-96 and 1996-97 was ordered to be produced the petitioner, the petitioner has constantly disobeyed the directions of the competent authority and has avoided to produce all the documents as demanded by the District Supply Officer, Junagadh under one or other pretext. One of the pretexts for nonproduction of the documents as demanded by the District Supply Officer, Junagadh was that the record was with the Chartered Accountant for the audit purpose and therefore the petitioner was not having the said record for the aforesaid two years and hence he could not produce the same. The respondent authorities waited for a quite longer period. Still the petitioner maintained the same stock answer and therefore at the last resort the respondent - authority recorded the statement of Chartered Accountant namely Shri Bharatbhai Karia of Junagadh who pointed out in his statement that he had never called for the record for the years 1995-96 and 1996-97 from the petitioner. The said Chartered Accountant has also pointed out before the respondent authority in his statement that he was having the record for period running from 1-4-1997 to 26-9-1997 and the same has been returned to the petitioner in the month of January, 1998. Thus, the plea taken by the petitioner for nonproduction of the documents for the aforesaid two years was found false and baseless. Subsequently, further hearing was given to the petitioner by the District Supply Officer, Junagadh on 9-3-1998, 16-3-1998 and 23-3-1998. But nobody remained present on behalf of the petitioner on 23-3-1998. Therefore, as a last chance, the first authority had adjourned the matter on 13-4-1998. On the last adjournment date, the petitioner raised new plea that because of fire the record of the petitioner was burnt and therefore now record could not be produced. This fact has been viewed very seriously by the respondent - authority. However, on earlier occasions, petitioner had presented false and fabricated affidavits and therefore F.I.R. being CR No.I - 119/97 for the offences punishable u/s 193-420-467 of the I.P. Code was registered against the petitioner with Junagadh City Police Station. Keeping in mind all these aspects, the District Supply Officer, Junagadh has not believed the pleas raised by the petitioner and had arrived at the conclusion that there was breach of the conditions no. 9 and 10 of the licences issued to the petitioner. Therefore, licences no. 181 and 1081 issued to the petitioner were cancelled and the deposit amounts of the petitioner were also forfeited by the District Supply Officer, Junagadh vide his order dated 16th August, 1998. The said conclusion was arrived by the first authority is confirmed by the appellate authority vide its order dated 5th December, 1998 and the copy of the said order dated 5th December, 1998 is produced at Annexure-C to the memo of the petition. Even the conclusion arrived at by the appellate authority is also confirmed by the revisional authority i.e. the Deputy Secretary, Food and Civil Supply Department, Gujarat State, Gandhinagar vide its order dated 17th July,1999. Thus, it is submitted by the learned Assistant Government Pleader appearing on behalf of the respondents that consistency of facts is found by all the three authorities below. The fact of non-availability of the documents with the petitioner for the years 1995-96 and 1996-97 was not believed by the authorities below. The statement of the said Chartered Accountant is diagonally opposite. In fact, the said Chartered Accountant had never called for the documents for aforesaid two years from the petitioner and even on previous occasions, the petitioner had produced false and fabricated affidavits and hence aforesaid criminal complaint was filed by the first authority below against the petitioner. The cumulative effect of the aforesaid facts and circumstances and the material on record, deserve non-issuance of the writ under Article 226 of the Constitution of India 6. Under the circumstances, the petition fails and the same deserves to be dismissed in limine. I have gone through the facts and circumstances of the case as well as the orders passed by the three authorities below. The plea taken by the petitioner as to non-availability of the record for the year 1995-96 and 1996-97 as demanded by the first authority below, initially the same was with the said Chartered Accountant and subsequently the record was not available because the record was burnt in the fire are false and wrong. Therefore, the conclusions as to facts arrived at by all the three authorities below are legal, valid and proper and there is no error apparent on the record of the case in the orders passed by the three authorities below. The orders of the authorities below also refer the previous behaviour of the petitioner as to filing of the false and fabricated affidavits and filing of aforesaid F.I.R. against the petitioner before Junagadh City Police Station by the respondent authority. 7. For the foregoing reasons, I see no reason to take deviation from the conclusions arrived at by all three authorities below that there is breach of conditions no. 9 and 10 of the licences issued by the respondent authority to the petitioner, are legal, valid and correct. Therefore, the petition fails and the same is dismissed. Rule is discharged, with no order as to costs. (D.N. Patel, J.) _/\/Satwara/