M/S Nyathar Mal Naresh Kumar v. Government of NCT of Delhi and Ors

NAVIN CHAWLA, J FEBRUARY 06, 2020/Arya

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 23.01.2020 Date of Decision: 06.02.2020 + W.P.(C) 3494/2019 & CM No.16030/2019 M/S NYATHAR MAL NARESH KUMAR ..... Petitioner Through Mr.Pradeep Gupta, Mr.Parinav Gupta, Ms.Mansi Gupta and Ms.Mamta, Advs. versus GOVERNMENT OF NCT OF DELHI AND ORS ..... Respondents Through Mr.Gautam Narayan, ASC, Ms.Shivani Vij and Ms.Dacchita Shahi, Advs. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. This petition challenges the order dated 12.07.2018 passed by the respondent no.3 and order dated 21.02.2019 passed by the respondent no.2 on the appeal filed by the petitioner. 2. By the Impugned Orders the respondent nos.2 and 3, relying upon the "Instruction regarding Renewal of Licence/Authorization of PDS outlet" dated 20.03.2006, have refused to renew the Fair Price Shop (FPS) Licence of the petitioner on the ground that one of the partners, namely Mr.Nyathar Mal, has not appeared in person before the Licencing Authority. Page 2 3. It is the case of the petitioner that the petitioner has been holding an FPS Licence since 17.04.1980. The petitioner is a Partnership Firm with two partners namely Mr.Nyathar Mal, who has 60% shares in the partnership and his son namely Mr.Naresh Kumar, who has 40% shares in the partnership. 4. Mr.Nyathar Mal is 86 years old and has been missing since 07.12.2017 and a Missing Person Report bearing DD No.012A dated 10.01.2018 has been registered at Police Station Samai Pur Badli, District Rohini, Delhi. 5. The petitioner applied for renewal of the FPS Licence and on such application, the respondent no.3 vide Call Memo dated 23.06.2018, called upon the both the partners of the Partnership Firm to be personally present. As Mr.Nyathar Mal was missing and could not appear, the respondent no.3 first passed an order dated 02.07.2018 suspending the licence of the petitioner and thereafter passed the Impugned Order dated 12.07.2018 cancelling the licence of the petitioner. 6. The petitioner's appeal filed against the above order was also dismissed by the respondent no.2 vide order dated 21.02.2019. 7. The learned counsel for the petitioner has placed reliance on the order dated 17.06.2002 issued by the Principal Secretary-Cum- Commissioner, Food and Supplies, Government of NCT of Delhi whereby policy conditions were stipulated for allowing changes in the constitution of the licencee, in case of death of the licencee/authorization holder, to their successors/legal heirs. He submits that the respondent nos.2 and 3 could have treated Mr.Nyathar Page 3 Mal as dead and could have transferred the licence in favour of his son, Mr.Naresh Kumar who was the other partner in the Partnership firm. 8. Placing reliance on the order dated 04.05.2009 passed by this Court in WP(C) 2025/2008, titled Pruthi Oil Depot thr. its surviving Licencee Naresh Kumar v. Govt. of NCT of Delhi and Ors. and the order dated 20.10.2010 of this Court in WP(C) 209/2008, titled M/s. Janta Fair Price Shop through: Sunil Kumar v. Govt. of NCT of Delhi & Ors, the learned counsel for the petitioner submits that in case of death of a partner, this Court has directed the respondents to renew the FPS Licence in the name of the remaining partner as a sole proprietor. He also places reliance on the judgment dated 17.09.2013 of the Calcutta High Court in W.P.(C) No. 2/2013, tilted Sambhu Nath Agarwal v. State of West Bengal & Ors., to contend that even otherwise, there is no requirement under the Delhi Specified Articles (Regulation of Distribution) Order, 1981 for calling all the partners of a partnership firm at the time of renewal. He submits that under Section 18 of the Indian Partnership Act, 1932, one of the partners can act as an agent of the firm for the purposes of the business of the firm, including applying for renewal of the licence. 9. On the other hand, the learned counsel for the respondents has placed reliance on the Policy/Circular dated 20.03.2006 to contend that in terms of Clause 4(i) thereo