SCA/9631/2006 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9631 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= RATILAL GIRDHARLAL THORIYA - Petitioner(s) Versus DISTRCIT SUPPLY OFFICER - Respondent(s) ========================================================= Appearance : MR HR PRAJAPATI for Petitioner(s) : 1, MS.PAURAMI SHETH, ASST. GOVERNMENT PLEADER for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 27/06/2006 ORAL JUDGMENT The petitioner, a holder of fair price shop authorisation, is before this Court being aggrieved of order dated 25th April 2006, whereby the authorisation is cancelled and deposit amount of SCA/9631/2006 2/10 JUDGMENT Rs.2,500/- is forfeited. 2. The case of the petitioner is that the order impugned is vitiated on account of non observance of principles of natural justice. The case of the petitioner is that the petitioner was served with show cause notice dated 2nd March 2006, whereby he was called upon to show cause as to why his authorisation should not be cancelled and why the amount of deposit either in full or in part be not forfeited. He was also called upon to explain as to why his authorisation should not be suspended. The petitioner was granted 15 days time to present his explanation and was asked to remain personally present, if he wants to make personal representation, on 16th March 2006. 3. The petitioner as per legal advice available to him served the District Supply Officer (hereinafter referred to as 'DSO') with letter dated 11th March 2006 and called upon him to supply documents mentioned in the said letter. The documents which are asked for, show the working of the mind of the petitioner. He demanded 'all the documents related to his case', collected by the authorities during the inspection of the business premises of the petitioner on various dates, mentioned in the show cause notice. He also asked for copies of all the bill books, stock register, sale register, etc., which as per the say of the SCA/9631/2006 3/10 JUDGMENT petitioner were seized from his business premises. Had the demand stopped with this, the bona fides of the petitioner would not have come under cloud. But then he demanded that if any investigation is made at the place of 'Sanchalaks' who have any connection with the petitioner then all papers related to those investigations like the statements of 'Sanchalaks', their accounting record, photographs taken at the place of the 'Sanchalaks' and other literature and material be made available to him. Judicial notice can be taken of the fact that the demand could not have been more vague than what it is. He also demanded the DGI Report pertaining to the samples taken from those 'Sanchalaks' and as if this was not enough he also asked for the order dated 31st May 2006 of the Food & Civil Supplies Department. The purpose is apparent, he wanted to delay the proceedings at any cost. This was replied by the authorities (DSO) by letter dated 29/ 31st March 2006. The authority informed the petitioner that all relevant material related to the irregularities referred to in the show cause notice, like Panchnama, statement and other related papers were supplied to the petitioner vide pages 1 to 22 along with the notice. It was also informed to the petitioner that if any other papers, unrelated to the defects/ irregularities mentioned in the show cause notice, are required by the petitioner, he can make an application to the Record Branch of the Office of SCA/9631/2006 4/10 JUDGMENT the Collector by depositing requisite fee and obtain the same. 4. The DSO by its letter dated 29/31st March 2006 also informed the petitioner that by show cause notice dated 2nd March 2006, the petitioner was informed to remain personally present on 15th March 2006, but on that day the petitioner had not remained present. Therefore, the petitioner is given an additional opportunity to remain present on 3rd April 2006. He was also advised that if he so chooses he may obtain copies of the document referred to/ demanded by him before the next date and shall remain present on the date of hearing, i.e. 03.04.2006. It was mentioned in the letter that if the petitioner will not remain present on that day, then it will be presumed that the petitioner has nothing to say in the matter and the matter will be proceeded in accordance with law. 5. To communication dated 29/ 31st March 2006 the petitioner sent reply through an advocate dated 3rd April 2006. It is stated therein that it is the duty of the authorities to supply all the documents and this is 'the minimum requirement' of law. Not only that it is obligatory on the part of the authorities to supply these documents under the Government Circular for observance of principles of natural justice. SCA/9631/2006 5/10 JUDGMENT In this notice/ reply it is mentioned that the petitioner is aged 75 years; he is physically infirm person. One will wonder that if that is so, then what is the earthly reason for which the petitioner should insist to continue his authorisation. 'A fair price shop authorisation' is meant for service of the society. Any income therefrom is a secondary thing to the service of the society. The fact that the petitioner is '75 year old' and is 'physically infirm', is an additional ground for which the authorities must relieve him of the burden of running a fair price shop. 6. The learned advocate submitted that after having sent reply dated 3rd April 2006, the petitioner also sent an application through a legal practitioner on 13th April 2006. This was in reply to notice/ letter dated 5th April 2006. This notice dated 5th April 2006 is not placed on record for the reasons best known to the petitioner. However, it is mentioned in the first para that the petitioner was served with notice dated 5th April 2006 asking him to submit written explanation after obtaining copies of documents on or before 20th April 2006 and to remain present before the authorities on that day. The petitioner did not remain present before the authorities even on that day. The petitioner made applications for certified copies on various dates and deposited necessary amount. The SCA/9631/2006 6/10 JUDGMENT case of the petitioner is that he is not given the copies of those documents and the order under challenge dated 25th April 2006 is passed, without following principles of natural justice. 7. The order is passed in reference to the defects/ irregularities pointed out in the show cause notice. It is the case of the authorities that the documents which were relied upon were supplied to the petitioner along with the notice. Not only that he was also informed that if at all he wants any other document he can obtain the same and shall submit his reply/ explanation, but then the petitioner has been avoiding submitting an explanation on one or the other excuse. Despite the fact that he was given three adjournments, he did not remain present before the authorities. Therefore, the authorities having no other alternative decided the case on merits. 8. The authority has recorded that the petitioner was found to have been indulging in irregularities and whiling away the stock meant for the mid-day meal scheme. When business premises of the petitioner were physically inspected, wheat, rice and sugar stocks were found in excess by 110 KG, 31.5 KG and 45 KG respectively. The said excess quantity is far more than the permissible limits of shortfall/ excess. The authority has taken into consideration the statements of the petitioner, Shri Ratilal Girdharlal Thoriya, given before the DSO on 29th August 2005, wherein he has stated that he is aged 80 years and SCA/9631/2006 7/10 JUDGMENT due to his ill health, the shop is run by his brother and son for the last 25 years. The authorities have taken into consideration this statement and the irregularities mentioned in the show cause notice before passing the order under challenge. 9. The learned advocate, Mr.Prajapati relied upon the the following decisions: (i)Judgement dated 18th October 2004 in Special Civil Application No.2964 of 2003, rendered by this Court (Coram: K.S. Jhaveri, J.) in the matter of Dashrathji Shivaji Thakor Vs. State of Gujarat. (ii) Judgement dated 19th October 2000 in Special Civil Application No.7994 of 1998 , rendered by this Court (Coram: H.R. Shelat, J.) in the matter of Harnarayan Bhaiyalal Shahu Vs. State of Gujarat. (iii)Judgement dated 27th November 2001 in Special Civil Application No.3109 of 2001, rendered by this Court (Coram: D.A. Mehta, J.) in the matter of Ekta Consumer Co. Operative Stores Vs. State of Gujarat. (iv) Judgement dated 23rd February 2005 in Misc. Civil Application No.1101 of 2004 in Special Civil Application No.7346 of 1997, rendered by this Court (Coram: D.N. Patel, J.) in the matter of Shyamlal Ganiram Shah Vs. Assistant Civil Supply Controller. and submitted that in the present case also the SCA/9631/2006 8/10 JUDGMENT authority has not taken into consideration the Circular dated 28th February 1997, hence a similar order be passed as was passed by this Court in these matters, and the matter be remanded/ remitted to the authorities for considering the same after taking into consideration the said circular. In all these matters learned advocate, Mr.Prajapati was appearing for the petitioners. He very well knew about the circular which he could have produced in the petition itself. For the reasons best known to the learned advocate, that circular is kept back from the Court. 10. At the fag end of his arguments the learned advocate for the petitioner requested the Court to allow him to produce that circular on record. The Court denied that permission in light of the foregoing reasons. 11. The learned advocate relied upon these decisions and orders of this Court and requested that this Court may also take the same course of action and remand the matter to the authority. In this matter, when the learned advocate who has expertise on the subject as he has been appearing in this type of matters for the last so many years, there is no reason why he should not have produced the circular. The only inference which can be drawn is that as the learned advocate was convinced of the SCA/9631/2006 9/10 JUDGMENT fact that the said circular is not applicable to the facts of the present case. One of the decisions relied upon is in the petition of the year 1998. This shows that the learned advocate is appearing in this type of matters since then. Therefore, it cannot be believed that it is a simple lapse on the part of the learned advocate. It is for the reasons of his own understanding he must have chosen not to produce circular on record. 12. None of the decisions has any application to the facts of the present case. The same course of action cannot be taken at this stage that is after the matter is heard at length. It is worth noting that the petitioner has come to this Court despite an alternative remedy being available to the petitioner. The order under challenge mentions that if the petitioner is aggrieved by the order he can file an appeal before the District Collector within 30 days from the date of the receipt of the order. The petitioner has chosen not to prefer an appeal despite the fact that the matter involves disputed questions of facts. 13. After the matter was fully heard and Court disclosed its mind, the learned advocate for the petitioner did make a request that he may be permitted to withdraw the petition and be allowed to take recourse to alternative remedy. Approaching the High Court should not be a matter of taking chance. SCA/9631/2006 10/10 JUDGMENT One cannot be allowed to take chance to get relief and if not successful, to pray for permission to withdraw the petition and then to opt for an alternative remedy. This practice requires to be and accordingly condemned. 14. The petition is dismissed with a cost of Rs.7,500/- (Rupees seven thousand and five hundred only). Notice is discharged. Deposit of the cost is made a 'condition precedent' for filing any proceedings either before this Court or before any other forum. (RAVI R. TRIPATHI, J.) karim