Nurul Islam Laskar Vs. State of Assam and ors. - Court Judgment

Excerpt:
- - subsequently, without allowing opportunity of being heard effectively, the deputy commissioner, hilakandi cancelled the sub-wholesaler dealership licence of the petitioner by impugned order dated 25.6.2002 which has been put under challenge in the second phase of litigation in the present writ petition. b.b. deb, j. 1. the present writ petition is the second phase of litigation pertaining to sub-wholesale dealership licence of kerosene oil.2. the petitioner is an unemployed graduate finding no alternative for employment decided to start business within the territorial jurisdiction of mohanpur gaon panchayat level co-operative society ltd. within the district hilakandi. as many as 40 numbers of retail fair price shop dealers have been doing business in kerosene oil under the supervision of gaon panchayat level co-operative society ltd. but since the panchayat could not provide any storage, the retail fair price shop dealers had been facing great difficulties to lift kerosene oil from the wholeseller situated at a long distance. the petitioner applied for sub-wholesaler dealership.....

Judgment:

B.B. Deb, J.

1. The present writ petition is the second phase of litigation pertaining to sub-wholesale dealership licence of kerosene oil.

2. The petitioner is an unemployed graduate finding no alternative for employment decided to start business within the territorial jurisdiction of Mohanpur Gaon Panchayat Level Co-operative Society Ltd. within the district Hilakandi. As many as 40 numbers of retail fair price shop dealers have been doing business in Kerosene oil under the supervision of Gaon Panchayat Level Co-operative Society Ltd. But since the Panchayat could not provide any storage, the retail fair price shop dealers had been facing great difficulties to lift kerosene oil from the wholeseller situated at a long distance. The petitioner applied for sub-wholesaler dealership licence for storage and selling kerosene oil at Algapur, Hilakandi. The authority having considered the feasibility, capability etc. issued a storage licence under the Petroleum Act, 1954 vide licence dated 10.9.1996 for storage of 25,000 lts. of kerosene oil. The said licence was renewed from time to time and is valid upto December, 2003. For dealing in kerosene oil, the Asst. Director, Food & Civil Supplies Department, Government of Assam issued a sub-wholesaler dealership licence in favour of the petitioner vide No. HSAPDA-K. Oil/4 dated 5.10.1996 and that has also been renewed from time to time with validity upto 31.3.2002. Secretary to the Government of Assam in the Food & Civil Supplied department vide memo No. FSA/200/94/292-A dated 19.10.2000 asked the Deputy Commissioner to allot S. K. Oil to sub-wholesale dealers with the maximum limit of 25,000 lts. while the petitioner had been doing his business uninterruptedly, suddently, the Deputy Commissioner, Hilakandi vide memo H.S.26/96/685 dated 26.11.2000 issued an order 'keeping in abeyance' the sub-wholesaler dealership licence of the petitioner along with few others mainly on the ground that 'in the kerosene restriction on use and fication of selling price order, 1993, there is no provision under which sub-wholesaler licences could be issued'. Though another sub-wholeseller dealership licence holder Sri Dulal Dutta had not been disturbed. However, the petitioner moved a writ petition before this court in W.P. (C) No. 8255/01 and this court while issued Notice of Motion, stayed the operation of the order of Deputy Commissioner. The Deputy Commissioner filed a petition seeking vacation of the interim order passed in that writ petition and the learned Single Judge after hearing the parties vacated the interim order with a direction to the Deputy Commissioner, Hilakandi to take final decision and to pass appropriate orders within a month. Being aggrieved, the petitioner moved a writ appeal before the Division Bench in W.A. No. 142/2002 and the hon'ble Division Bench vide order dated 23.4.2002, though declined to interfere with the order of the learned Single Judge, yet directed the Deputy Commissioner, Hilakandi to finalise the matter with a speaking order after allowing opportunities of being heard to the petitioner. Subsequently, without allowing opportunity of being heard effectively, the Deputy Commissioner, Hilakandi cancelled the sub-wholesaler dealership licence of the petitioner by impugned order dated 25.6.2002 which has been put under challenge in the second phase of litigation in the present writ petition.

3. The State respondents filed counter affidavit contending, inter alia, that after holding inquiry, it was detected that the petitioner and some other sub-wholesalers were defaulters in not obtaining approval of the Government to run such business nor they obtained any 'no objection' certificate from the concerned GPSS. The authority initially suspended the licence and after affording reasonable opportunity of being heard, cancelled same by the impugned order and in doing so, the Deputy Commissioner committed no wrong or illegality. It is further contended in the counter affidavit that the petitioner 'charged extra/excess amount from the dealers' in selling the kerosense oil and the authority on receipt of the complaint investigated the same and found the allegation to be correct. Hence the authority issued the cancellation order.

4. Learned counsel for the petitioner referring annexure-5 dated 26.11.2001 submits that the Deputy Commissioner having misconceived the provision of law issued the said order dated 26.11.2001 keeping the sub-wholesaler licence of the petitioner in abeyance. Learned counsel for the petitioner Mr. B. K. Sarma further submits that the sub-wholesaler licence is governed and regulated by the provision of 'Assam Public Distribution of Articles Order, 1982'. To deal in a business with notified articles as defined in Clause 2(b) of the said order, the license is required. Among other items, kerosene oil is a notified article. Three kinds of licence could be issued for selling the notified articles under Clause 2(1)(m)(n) of the said order, 1982. The sub-wholesale dealers licence is defined under Clause 2(m) which runs as follows :-

'(m) 'sub-wholesaler' means an appointed dealer who purchases any one or more of the notified articles from the wholesaler and sells to such retailers at such prices, in such quantities and at such intervals of time as may be directed by the Licensing Authority.'

Therefore, it appears from the aforequoted statutory definition that the petitioner has lawfully been issued a 'sub-wholesale' dealership licence by the authority concerned vide licence No. HSAPDA/K.Oil/4 dated 5.10.1996 (annexure-2) which had been renewed from time to time with last validity as on 31.3.2002. In the impugned order of suspension issued by the Deputy Commissioner, Hilakandi vide Memo no. HS-26/96/386 dated 26.11.2001 (annexure-5), there is no mention as to malpractice committed by the petitioner nor there had been any allegation that the petitioner charged 'extra amount or excess amount' from the customer or dealers nor any other allegation of malpractice has been labelled against the petitioner in this suspension order. From the impugned order of cancellation dated 25.6.2002, it reveals that the Deputy Commissioner had taken into consideration some extraneous materials not available in his suspension order dated 26.11.2001. The impugned order of cancellation appears to have been passed on conjectures and surmisal. No evidence has been recorded in presence of the petitioner regarding any imputation of misconduct pertaining to dealings of the petitioner in Kerosene oil. In the impugned order, the Deputy Commissioner made some observation which appears to be extraneous. These are - 'but, it is unlikely that they will carry on the business without any profit. Here, two distinct possibilities can be conceived. Either they may distribute the commodity (K. oil) to the retailers at a higher price in violation of Section 4(1)(c) of the Kerosene (Restriction on use and fixation of Ceiling Prices) Order, 1993 or they may resort to unfair means in order to earn some profit for them. Either way, the consumers interest will be affected. The Area Officers' report also reveals that there is no necessity of any middle agent as the commodity (K. oil) is being lifted and distributed regularly by the wholesalers and retailers respectively.' There is no material available with the records that the Deputy Commissioner verified any complaint lodged by the retailers or customer allowing any opportunity of being heard to the petitioner. All the aforequoted observations made by the Deputy Commissioner appear to be extraneous having based on no proved evidence and as such the impugned finding of the Deputy Commissioner cannot be allowed to stand in absence of any materials.

5. In that view of the matter, I am constrained to hold that the impugned order dated 25.6.2002 cancelling the petitioner' sub-wholesale dealership licence has been passed by the Deputy Commissioner on mere surmisal and conjectures on his speculation and assumption not based on any materials whatsoever and as such the impugned order is liable to be quashed.

6. Accordingly, the writ petition succeeds. The impugned order dated 25.6.2002 communicated vide Memo No. HS.15/97/61 dated 1.7.2002 (annexure 21) is hereby quashed. Consenquently, the suspension order issued vide Memo No. HS.26/96/685 dated 26.11.2001 (annexure-5) is also quashed. However, liberty is granted to the Deputy Commissioner to proceed in accordance with the provision of Sub-section (2) of Section 15 of the Assam Public Distribution of Articles Order 1982 if he deems it proper and appropriate under the facts and circumstances of the case. No cost.