1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.4203/2000 Ramesh Kumar Agarwal vs. State & Ors. Date of order : 30/4/2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Sanjay Sharma for the petitioner. Shri Pradeep Kalwania, Addl. Govt. Counsel for the respondents. ****** This writ petition has been filed against the order dated 13.5.1997 by which the licence of the petitioner as fair price dealer shop was cancelled after holding an enquiry on various allegations as are enumerated in show cause notice dated 10.1.1997. Petitioner challenged the aforesaid order by way of filing an appeal before the Collector, Jaipur. The appeal was also dismissed and he thereafter filed revision petition under Section 22A of the Essential Commodities Act, which too was dismissed. Both these orders are also challenged by the petitioner. Learned counsel for the petitioner has argued that copy of the enquiry report and other documents submitted by the inspecting team were not supplied to him and that 2 irregularities shown in the show cause notice and the preliminary enquiry report were more than one year old. No cognizance could be taken on such old complaints. Petitioner was not allowed to cross examine the members of the inspection team and District Supply Officer has passed the order in violation of principles of natural justice. Learned counsel referred to the Circular of the Government dated 23.9.1992 and submitted that in that Circular the Government has clarified that on mere technical grounds licence of a fair price dealer should not be cancelled. Although, it is alleged that Enforcement Officers of the Supply Department inspected the shop of the petitioner on 4.1.1997 and 13.1.1997 but it is not shown that on what authority of law they could enter and inspect such reports of the shop. Reference in this connection is made to Rule 24 of the Rajasthan Foodgrains and Other Essential Commodities (Regulation of Distribution) Order 1976. Learned counsel sought to explain the allegation of the petitioner by submitting that illegal pressure was exerted on the petitioner to 3 give kerosene to influential and other persons by Municipal Councilors and Members of Legislative Assembalies and at their instance, he had to supply certain kerosene oil etc. These instances were specifically pointed out by the petitioner to the Enquiry Officer / DSO but nothing has been mentioned thereabout. It is contended that action of the respondents is discriminatory inasmuch as large number of shops keepers, who had committed more serious irregularities have been set off whereas licence of the petitioner was cancelled with forfeiture of security deposit. It is denied that the shop of the petitioner was closed. In fact the petitioner had to shift to some other premises and the changed address was duly intimated to the office of DSO. The inspection team still went to old premises. Allegation of entry in the register with no such entry in the ration card, is not sustainable as none of the alleged ration card holders have come forward to make a complaint or give evidence. Moreover, such allegation could not be used against the petitioner because copies of these ration 4 cards have not been supplied to him. It is therefore prayed that the writ petition be allowed and the impugned order be quashed and set aside. Shri Pradeep Kalwania, learned Additional Government Counsel opposed the writ petition and submitted that although it is correct that the petitioner once changed shop and that address was notified to the office of DSO, but then the petitioner second time again shifted his shop to a third place, which was not intimated. The Inspection Team found that shop was not being run from the originally changed place but the petitioner now started running the shop from a different place. Notice of show cause was duly served upon the petitioner on charges of serious irregularities such as shop of the petitioner when the inspection was carried out on 4.1.1997 and 13.1.1997, found closed and that the sale of 4140 liter kerosene for the month of October, 1995 was incorrectly entered in the distribution register whereas in the monthly return submitted it was indicated as 4365 liters, therefore, 225 liters of kerosene was not 5 accounted for and was misused by the petitioner. Similar was the allegation with regard to month of January, 1996 wherein the petitioner showed 5030 liters of kerosene to have been distributed in the relevant year whereas in the monthly return submitted to the respondents, he claimed that he has sold 6000 liters. In this manner, he misused 970 liters. A total of thus 1195 liters was thus sold by the petitioner in the black market. In the inspection of ration cards, it was found that while the entry was made in the distribution register for sale of kerosene to some of the ration card holders, but there was no corresponding entry in the ration cards. Reference was made to the ration card nos.22801, 22990, 23040, 22940, 22140, 22109, 22214, 22264, 23033, 23039, 22802, 22960, 22963, 22964 and 22166. In certain other ration cards, it was found that though entry is made for distribution of kerosene but date of distribution and the price charged from the consumers was not indicated. The learned Additional Government further submitted that petitioner was afforded full opportunity to defend himself. 6 He not only appeared before the Enquiry Officer but also inspected all the records. Entire documents were made available to him which were inspected and thereafter he filed the reply to the show cause notice. Not only this, the statements of ration card holders were also recorded and the enquiries were made from the ration card holders. It is submitted that the officers of the Supply Department which inspected the shop had the power of entry, inspection, search, interrogation as per the control order of 1996 and other orders issued under Essential Commodities Act. Learned counsel submitted that there is no requirement of giving prior notice before making inspection because the respondents had all the powers to make surprise checking. It was denied that any undue pressure was exercised by the officials of the respondent-department for giving kerosene to the persons of their choice and they are sending slips. If the petitioner had given kerosene on the rates issued by the Municipal Councils, then he is himself liable for shortage of such kerosene oil. The appellate authority and revisional 7 authority have both dismissed the appeal and revision of the petitioner by giving detailed reasonings. The writ petition be therefore dismissed. Upon hearing the learned counsel for the parties and perused the impugned order, I find that the respondents on the basis of charges referred to in show cause notice held the enquiry. Prior to holding enquiry, show cause notice was given and whatever documents he wanted, have been supplied. The petitioner apart from giving written submissions, has also participated in the enquiry. The DSO has noted that the copy of the preliminary enquiry report prepared by the inspecting team was duly supplied by authorised representative. Petitioner was submitted the report and other relevant documents on at least two occasions. So far as the distribution register, monthly return etc. is concerned, the DSO observed that these are reports which the petitioner may prepare and produce before the respondents. Obviously, therefore, the DSO was justified in not supplying copies thereof and their non supply has not caused any prejudice to 8 the petitioner. The DSO on the aforesaid allegations held that there was violation of condition no.5, 6, 9, 15 and 17 of the Authorisation Letter / Licence and thereby the petitioner violated clause 6 of the Order of 1976. So far as the contention that the petitioner had changed the shop from one place to another and therefore if the respondents inspected his shop at the old place is concerned, such contention is noticed to be rejected because respondents have clarified that one changed place of the petitioner was notified to them, but they found the shop being run by the petitioner from a third place which was not notified. Even then the respondents made the inspection from the third place. It was not necessary for the respondents to serve a prior notice to the petitioner when they intended to make the inspection and in doing so, element of surprise was rather necessary. Compliance of various regulatory measures would have been completely lost, which is the purpose for such inspection. Not only DSO but the District Collector and the Additional Food Commissioner have given 9 detailed reasons in support of their finding which can neither be said to be the basis, nor otherwise erroneous or perverse either on facts or on law. I do not find in merit in this writ petition, which is accordingly dismissed. (MOHAMMAD RAFIQ), J. RS/