Suresh Kumar Gupta v. Commissioner of Food & Supplies & Anr

REVA KHETRAPAL, J MARCH 28, 2008 nm

* IN THE HIGH COURT OF DELHI AT NEW DELHI + LPA 55/2008 % Date of decision : 28th March, 2008 M/s Suresh Kumar Gupta ..... Appellant Through Mr.Pradeep Gupta with Ms.Laxmibai Leitanthem, Advocates versus The Commissioner of Food & Supplies & anr. ..... Respondents Through Mr.S.D. Salwan with Mr.Neeraj Choudhary, Advocates. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MS. JUSTICE REVA KHETRAPAL 1. Whether reporters of local papers be allowed to see the judgment ? Yes 2. To be referred to the Reporter or not ? Yes 3. Whether the judgment should be reported in the Digest ?Yes DR. MUKUNDAKAM SHARMA, CJ : 1.The present appeal is directed against the judgment passed by the learned Single Judge on 1st November, 2007 whereby the writ petition filed by the appellant as a writ petitioner was dismissed. 2. The appellant herein was issued a Fair Price Shop licence in 1979 for Majlis Park. In terms of the said licence, the appellant was required to be engaged in the sale of controlled commodities, offered through the Public Distribution System. The appellant operated the said licence till 2000. A plea was taken in the writ petition filed by the appellant that from 25th July, 2000 to 25th January, 2001, he was seriously ill and was, therefore, unable to operate the licence or offer Public Distribution System commodities for sale to the public. The appellant was served a memo dated 23rd November, 2000, which was replied to by the appellant by submitting a reply on 28th January, 2001 wherein he stated that he was suffering from Typhoid. On 11th March, 2003 a notice was issued to him directing him to show cause as to why his licence should not be cancelled. The same was replied to by the appellant. Even subsequent thereto another show cause notice was issued on 5th January, 2005, by the respondent as against which reply was also filed. An order was passed by the respondent on 26th May, 2005 whereby the licence granted to the appellant was cancelled. The said order was passed pursuant to show cause notice dated 11th March, 2003, which was based on the report that the aforesaid Public Distribution System shop was neither functioning nor the appellant had submitted any draft for lifting SFAs since long. After making a reference to the aforesaid, the following order was passed: "It has been reported by the FSO circle- 56 that M/s Suresh Kumar Gupta FPS No.5368 situated at A-69 Majlis Park, Delhi under circle No.56 is neither functioning nor submitted any draft for lifting SFAs since long. A show cause notice No.AC (N)/F&S/2001/404/ dated 11.3.03 was issued by the then AC(N) to appear before him on 21.3.03 and again reminder issued vide No.AC(N) F&S/2005/86 dated 5.1.05 for final appearance on 20.1.05. Sh. Suresh Kumar Gupta, proprietor of FPS present before the then AC(N) on 1.2.05 and submitted his written reply. In his defense, he has stated that his FPS was not functioning since Oct, 2000 due to his illness but in support of his version, he submitted only "copy of medical certificate" about the treatment taken by him in the month of Oct, 2000 in which he was advised three months rest up to 25.10.2000 by a BHM doctor and except this, he has not submitted further any evidence about non-functioning of his FPS. Neither he has applied for any kind of leave during the said period in view of department's instruction No.F.28/4/97 /F&S/ P&S/1105 dated 15.7.99 about grant of leave to PDS units. Vide departments order dated 12.10.04 and 11.11.04, worthy CFS has already issued directions that PDS units which are neither functioning nor submitting any draft for period of more than three months be cancelled forthwith. On going through carefully the written reply filed by the licensee, his verbal arguments / averments made before the then AC(N) recorded in the case file on 1.2.05 and available relevant past record now placed before me for deciding the case, I am of the considered view that merely on production of a medical certificate and that too from a private