IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 4817 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE C.K.THAKKAR ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 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 Civil Judge? : NO -------------------------------------------------------------- DALPATBHAI BAVABHAI PRAJAPATI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR SHIVANG J SHUKLA FOR MR JS YADAV for Petitioner MR M.A.BUKHARI,AGP for Respondent No. 1, 2, 3 -------------------------------------------------------------- CORAM : MR.JUSTICE C.K.THAKKAR Date of decision: 15/03/2000 ORAL JUDGEMENT Rule. Mr Bukhari, AGP appears for the respondent authorities and waives service of notice of rule. In the facts and circumstances of the case, the matter is taken up for final hearing today. This petition is filed for quashing and setting aside the order passed by the District Supply Officer on 30th September, 1996 , confirmed by the Collector on 27th March, 1997 as also by the Government on May 19, 1998. The petitioner was carrying on business as retailer in kerosene since 1981. It was his case that on August 16, 1996, on account of betrothal of his son, he was required to go out and his shop remained closed for one day. According to him, unfortunately, on the same day, there was surprise checking and his shop was found closed. It was also alleged that record could not be inspected as the shop was closed. It was further alleged that in the price board, particulars about the quantity and price were not mentioned. Notice to show cause as to why deposit amount should not be forfeited and licence should not be cancelled was issued. An order was passed by the District Supply Officer cancelling the licence and confiscating the deposit amount of Rs. 250/- which was confirmed by the authorities below. At the time of hearing, several contentions were raised by the learned advocate for the petitioner. It was submitted that it was true that shop was closed. Obviously, in these circumstances, allegations Nos. 2 and 3 were held proved inasmuch as when the shop was closed, record could not be inspected nor in price board, particulars were mentioned. It was, however, stated that in view of the fact that there was betrothal of his son, the petitioner was required to go out. Though not stated in the show cause notice, what weighed with the authorities was that the petitioner was doing another business of running a tempo. Regarding that business, it was the contention of the petitioner that it was not alleged in the show cause notice, but during the course of hearing before the authorities, said fact was brought to the notice of the authorities. The petitioner further stated that there were eight members in his family and it was not possible to maintain the whole family on a meagre amount which the petitioner was earning from fair price shop and hence , the petitioner was doing business in kerosene as a retailer whereas tempo was run under his instructions and supervision by his son. It was urged that the said statement was treated as admission by the revisional authority who stated that since the petitioner was doing business in transport, it can be inferred that he was no more interested in selling kerosene as retailer and the order passed by the authorities below was legal and proper. In my view, when the petitioner has put forward the reason for closure of his shop on the day in question and that he has also stated that he was doing business for which a licence was given and transport business was done by his son under the supervision of father i.e. the petitioner, it cannot be said that by doing so, an illegality can be said to have been committed by the petitioner. In my opinion, therefore, the order deserves to be quashed and set aside by directing the authorities to consider the case of the petitioner afresh. The revisional authority will consider same preferably within one month from the receipt of the writ. In this connection, it is necessary to refer to a decision of the Supreme Court in N. Nagendra Rao vs. State of A.P. AIR 1994 SC 2663. Considering the provisions of Section 6A of the Essential Commodities Act 1955, their Lordships held that each and every contravention cannot be treated as serious. Certain illegalities can be said to be ofa serious nature, for instance, black marketing or selling adulterated goods etc. But others may be mere technical contravention and no serious action can be taken in respect of such irregularities. In the instant case, even according to the allegations of the authorities, on one day, the shop remained closed. In my opinion, for such irregularity, cancellation of licence was not called for. The authorities, in the light of the above observations and the decision of the Supreme Court will decide the matter afresh and pass appropriate order in accordance with law. Rule is made absolute to the aforesaid extent. No order as to costs. -- parekh