1. Heard Sri L.C. Srivastava, learned counsel for the petitioner and Sri Anoop Kumar Srivastava, learned Additional Chief Standing Counsel for the respondents.
2. The petitioner, Ekabal Khan, resident of Village Sutari, Post Dariyapur, Tehsil and District Bulandshahar, was appointed as a fair price shop dealer for distributing essential commodities in furtherance of public distribution scheme in 1993, to be more precise by order dated 21.10.1993 issued by the Deputy Collector, Bulandshahar. The said appointment was for Gram Sabha Sutari and the quota assigned to petitioner was 330 kg. of sugar and 676 liters of kerosene oil.
3. It appears that a complaint was made by one Sri Shaharuddin son of Nishar Ahmad against petitioner, whereupon the District Supply Officer, Bulandshahar directed for an inquiry vide order dated 18.05.2011. It is said that Block Development Officer, Bulandshahar submitted report on 21.06.2011 observing that the complaints have been made by several persons regarding non-distribution of essential commodities and that for the last four months there has not been any distribution of wheat to card holders. Consequently, by order dated 11.08.2011 the Deputy Collector suspended the dealership of petitioner. A show cause notice/charge sheet was issued on 11.08.2011, served on 17.08.2011. On the request of petitioner a further inquiry was conducted by Tehsildar (Judicial), Bulandshahar on 17.08.2011 and he submitted report on 18.08.2011. Thereafter the petitioner submitted reply on 21.09.2011. The Deputy Collector ultimately passed order on 24.09.2011 cancelling fair price shop agreement of petitioner and forfeiting security. He relied on Tehsildar's report dated 17.08.2011 as also the history of petitioner's way of working inasmuch as earlier also on 22.03.2011 his agreement was suspended but restored on 14.07.2011 with a warning and imposition of fine of Rs. 2000/-. The petitioner filed Appeal No. 3/2011-12 before Commissioner, which has been rejected by order dated 13.02.2012. The Appellate Authority has observed that dealer was not regularly distributing essential commodities and could not justify non-distribution in particular the APL wheat in the months of May, June and July, 2011; failed to produce documents during inquiry and charged excess rate, therefore, has violated Clause 4(3) of Scheduled Commodities Distribution Order, 2004.
4. Learned Counsel for petitioner submitted that in effect the basic ground taken by all the authorities is that the petitioner was found guilty of non-distribution of essential commodities for the last four months ignoring the fact that from March, 2011 to 14th July, 2011, petitioner's dealership was under suspension and therefore, for the aforesaid period if there was any non-distribution of essential commodities, the petitioner cannot be held responsible. Similarly, the petitioner categorically raised a plea before the authorities concerned that in the entire Tehsil Bulandshahar, APL wheat was not at all allowed to be lifted by any fair price shop dealer for the months of May, June and July, 2011 and this fact was duly noted by the appellate authority in the impugned order dated 13.02.2012 but thereafter he has failed to advert on the correctness of petitioner's claim and yet has held the petitioner responsible. He further submitted that for the month of August 2011, the date of distribution as per roster was 21st August and much prior thereto, again his dealership was suspended on 11th August, 2011, hence, for the aforesaid reason, petitioner could not have been held responsible.
5. The contention of petitioner's counsel that for the month of May, June and July, 2011 APL wheat was not sanctioned and allowed to be lifted by any dealer in Tehsil Bulandshahar was a surprising fact which was not admittedly and apparently adverted to by the Commissioner in the impugned appellate order. Hence, this Court passed an order on 21.03.2012 requiring respondents no. 2 and 3 to explain the following two aspects:
"i: No APL wheat quota was released in Tehsil Sadar, Bulandshahar in the period of May, June and July, 2011, if so, in what circumstances.
ii: Whether petitioner's agreement was under suspension from 22.03.2011 to 13.07.2011 and if that is so, how he can be held responsible for non-distribution of essential commodities during aforesaid period. He shall also explain why despite intimation given by learned Standing Counsel, they have not given any instructions."
6. I am pained to observe that the respondents no. 2 and 3 have tried to evade a clear reply on these aspects inasmuch as in the counter affidavit dated 16.04.2012 sworn by Kripa Shanker Yadav, Tehsildar (Judicial), Bulandshahar, nothing has been said on the aforesaid queries. Then a supplementary counter affidavit was filed wherein a copy of the order of District Supply Officer, Bulandshahar has been appended and it is said that he had allocated/distributed APL wheat for the month of July, 2011 by order dated 02.06.2011, for June, 2011 by order dated 09.05.2011 and for the month of August, 2011 by order dated 01.07.2011. Whether the lifting was actually allowed or not, nothing has been said in this regard. Moreover, in para 5 of supplementary counter affidavit, it has been admitted that in the month of April, 2011 one M/s Akbar Ali had lifted 37 quintals of APL wheat and for the month of May and June 2011, no allocation of APL wheat was made in favour of petitioner. However, it says that for the month of July, 2011 allotment of wheat was made by District Supply Officer vide order date 02.06.2011 though the petitioner's agreement on that date was under suspension. With respect to lack of discussion on this aspect in the impugned appellate order, it is said that petitioner did not press the aforesaid ground and no arguments were raised before respondent no. 3 i.e. the Deputy Collector, Bulandshahar. However, this paragraph 4 in which this fact has been stated, has been sworn by the deponent, Sri Kripa Shanker Yadav, Tehsildar (Judicial), Bulandshahar on the basis of record without placing anything on record to show, how the aforesaid deponent who does not claim to be personally present when the matter was heard by respondent no. 3, could gather this knowledge that this issue was not pressed before respondent no. 3, by petitioner.
7. There is a second supplementary counter affidavit filed by the same person, i.e., Kripa Shanker Yadav, Tehsildar (Judicial), Bulandshahar sworn on 30.04.2012. The justification of second supplementary counter affidavit is that considering petitioner's rejoinder affidavit and supplementary rejoinder affidavit; it become necessary. This affidavit refers to Government Orders dated 25.01.2006 and 03.03.2010 providing guidelines for lifting and distribution of food/sugar and kerosene under the targeted public distribution system. For compliance of aforesaid Government Orders, a roster dated 21.12.2011 was scheduled by Sub Divisional Magistrate, Bulandshahar and sent to senior Marketting Officer with further direction of strict compliance thereof. It has also appended as Annexure-SCA-5, a chart prepared on 20.04.2012 showing that 1540 liters of kerosene oil was allotted and lifted by petitioner on 20.07.2011. The aforesaid chart in fact relates to fair price shop of petitioner and shows lifting of kerosene oil from January, 2011 to April, 2012. According to this chart, in the month of January, February and March, kerosene oil was lifted by petitioner and similarly it was done by him in May, June and July, 2011 as well as January, 2012. For rest of period it has been lifted by some other dealer, probably for the simple reason that during remaining period petitioner's licence was either suspended or cancelled. Annexure-SCA-6 show that APL wheat was lifted by petitioner in December, 2010, January, February and July, 2011. It has also appended report dated 06.08.2011 of Block Development Officer which refers to his visit of Village Sutari on 03.08.2011 wherefrom he collected statements of some persons with three sitting at different places. Besides general complaints, it also says that in the preceding four months no wheat was distributed by the petitioner.
8. In the rejoinder affidavit the petitioner has reiterated the facts stated in writ petition but has also demonstrated the fallacy in the submissions of respondents, hence I shall discuss the same later on.
9. Learned counsel for the petitioner vehemently contended that the impugned orders have been passed only to victimise the petitioner and to somehow oust him from dealership so as to make way for someone else under the influence of Gram Pradhan and the impugned orders besides, being otherwise illegal and contrary to law, are also vitiated being malicious in law.
10. I propose to examine various aspects in the light of pleadings and facts as discussed above.
11. Though in the impugned orders, long drawn history of petitioner's functioning has not been referred to and considered by respondents no. 2 and 3 but in the counter affidavit the respondents have chosen to give the tainted history of petitioner in the last almost 19 years of his functioning as fair price shop dealer. I would refer the same in brief to discuss, whether it makes out a case against petitioner to non suit him on equity.
12. The first complaint was received against petitioner on 19.04.1994 which resulted in forfeiture of his security of Rs. 250/- vide Government Order dated 11.04.1994. Then a warning was administered to petitioner on 06.01.1996. On 28.06.1997 the petitioner's shop was found closed on an inspection, hence a show cause notice was issued on 01.07.1997 and it resulted in final order of forfeiture of security of Rs. 100/-. Then again on 11.11.2003 when inspection was made by Supply Inspector, irregularities were noticed in maintenance of stock and sale register, hence a show cause notice was issued on 20.11.2003 and it attained finality with forfeiture of security. Then a complaint was made on 18.01.2011, i.e., after more than seven year whereupon Naib-Tehsildar inspected the shop on 11.03.2011 and found certain irregularities and in furtherance whereto agreement was suspended on 22.03.2011. It was however restored on 14.07.2011 with a fine of Rs. 2000/- and warning.
13. Even before restoration on 14.07.2011, another complaint on 05.07.2011 was received regarding non-distribution of essential commodities in the preceding several months. This complaint resulted in a show cause notice dated 11.08.2011 and suspension of petitioner's agreement which resulted in the impugned order of cancellation dated 24.09.2011, which confirmed in appeal vide order dated 13.02.2012.
14. Assuming what has been stated is correct, this Court finds that except 1994 matter, details whereof have not been given, the two matters of 1997 and 2003 were really petty and, therefore, no serious action was taken. It is only in 2011, from the very commencement of the year that the petitioner was put in trouble and that has continued.
15. It is interesting to note that before cancellation of his agreement on 24.09.2011 the petitioner's agreement could actually operate for a very short period, i.e., 01.01.2011 to 21.03.2011, 14.07.2011 to 10.08.2011 and 18.10.2011 to 31.11.2011 (under stay of appellate authority). In the remaining period, i.e., from 22.03.2011 to 14.07.2011 and 11.08.2011 to 17.10.2011 the agreement was under suspension/cancellation. In the impugned orders the petitioner has been held guilty of non-distribution of essential commodities regularly and for months together though before 11.08.2011 petitioner's dealership had not operated even for a month having revived only on 14.07.2011. It is also admitted by respondents that for the month of May and June, 2011 there was no distribution of wheat to petitioner at all and for the month of July, 2011 after restoration of petitioner's agreement, he could lift kerosene oil on 20.07.2011 and APL wheat on 31.07.2011 but the shop was again suspended on 11.08.2011. It is really difficult and virtually improbable to conceive that in such circumstances the petitioner can be held responsible and guilty for non-distribution of essential commodities to card holders attached with his shop for several months in past. In fact the fallacy and malice on the part of respondents is writ large from the fact, when petitioner's licence was under suspension w.e.f. 21.03.2011, another complaint was received and entertained on 05.07.2011 ignoring the fact that in the preceding several months it is not the petitioner who was distributing essential commodities, since his agreement was under suspension but someone else. The Deputy Collector apparently without application of mind and in a mechanical manner ordered an inquiry and relying thereon again suspended agreement on 11.08.2011 without appreciating that the agreement was restored only few days back, i.e., 14.07.2011 and no complaint has been made for the period in between, i.e., 14.07.2011 to 11.08.2011 alleging irregularity on the part of petition during this period.
16. Though it is specifically pleaded that entire exercise on the part of respondent no. 3 was under the political influence of concerned Gram Pradhan who wanted to oust the petitioner and even the complainant, Sri Shaharuddin was directly related with Gram Pradhan, being son of elder father (Tau) of Gram Pradhan. I do not intend to investigate, whether there is any malice in fact or not but I am satisfied that the action of respondents no. 2 and 3 in the case in hand show a case of malice in law.
17. The Apex Court has summarised "malice in law " in (Smt.) S.R.Venkatraman Vs. Union of India and another, AIR 1979, SC 49 as under :
"It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go, these may well be said to run into one another." (Para 8)
18. The Apex Court further in para 9 of the judgment in S.R. Venkatraman (supra) observed:
"9. The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. It will therefore be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of Government servants only in the ''public interest', to a purpose wholly unwarranted by it, and to arrive at quite a contradictory result. An administrative order which is based on reasons of fact which do not exist must, therefore, be held to be infected with an abuse of power."
19. In Mukesh Kumar Agrawal Vs. State of U.P. and others JT 2009 (13) SC 643 the Apex Court said :
"We also intend to emphasize that the distinction between a malice of fact and malice in law must be borne out from records; whereas in a case involving malice in law which if established may lead to an inference that the statutory authorities had acted without jurisdiction while exercising its jurisdiction, malice of fact must be pleaded and proved."
20. In Somesh Tiwari Vs. Union of India and others 2009 (2) SCC 592 dealing with the question of validity of an order of transfer on the ground of malice in law, the Apex Court in para 16 of the judgment observed as under:
"16. .... Mala fide is of two kinds--one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal."
21. In HMT Ltd. and another Vs. Mudappa and others JT 2007(3) SC 112 the Apex Court in paras 18 and 19 defined malice in law by referring to "Words and Phrases Legally Defined, 3rd Edn., London Butterworths, 1989" as under:
"The legal meaning of malice is "ill-will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means ''something done without lawful excuse'. In other words, ''it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite'. It is a deliberate act in disregard of the rights of others."
"19. It was observed that where malice was attributed to the State, it could not be a case of malice in fact, or personal ill-will or spite on the part of the State. It could only be malice in law, i.e legal mala fide. The State, if it wishes to acquire land, could exercise its power bona fide for statutory purpose and for none other. It was observed that it was only because of the decree passed in favour of the owner that the proceedings for acquisition were necessary and hence, notification was issued. Such an action could not be held mala fide."
22. In brief malice in law can be said when a power is exercised for an unauthorized purpose or on a fact which is claimed to exist but in fact, is non-est or for the purpose for which it is not meant though apparently it is shown that the same is being exercised for the purpose the power is supposed to be exercised. [See Manager Govt. Branch Press and another Vs. D.B.Belliappa AIR 1979 SC 429; Punjab Electricity Board Vs. Zora Singh and others AIR 2006 SC 182; K.K.Bhalla Vs. State of U.P. and others AIR 2006 SC 898; P. Mohanan Pillai Vs. State of Kerala and others (2007) 9 SCC 497; M.P.State Corporation Diary Federation Ltd. and another Vs. Rajneesh Kumar Zamindar and others (2009) 6 SCALE 17; Swarn Singh Chand Vs. Punjab State Electricity Board and others (2009) 7 SCALE 622 and Sri Yemeni Raja Ram Chandar Vs. State of Andhra Pradesh and others JT (2009) 12 SC 198].
23. The second supplementary counter affidavit filed by respondents also demonstrated the same inasmuch as it has shown nowhere in the affidavit that there was a deficiency on the part of petitioner in distribution of essential commodities for any period subsequent to 14.07.2011 when his agreement was restored after imposing fine. Yet within almost 25 days thereafter, the respondents found a sufficient ground to act against petitioner in respect to his alleged misdeeds for the period prior to 14.07.2011 in respect whereof inquiry was already made and petitioner was penalised. That is how not only lack of application of mind on the part of respondents no. 2 and 3 is writ large but a lack of bona fide in their attempt and failure to consider the matter objectively is also evident. The complaint of petitioner about non-consideration of entire matter by respondents no. 2 and 3 independently and impartially stands fortified and I am constrained to say that it is tainted with malice in law.
24. Time and again this Court has said that public distribution system has been evolved to take care of downtrodden little Indians who find it extremely difficult to meet their two ends due to high inflation and their own financial conditions. It is to provide sustenance to poorest of poor people in the country. A huge subsidy is contributed by Government to help these poorest of poor people and for maintaining the system. The dealers/agents are only a device and method to achieve the objective of smooth and timely distribution of essential commodities under the aforesaid system and to achieve its goal. The administration, therefore, owe a very heavy and pious responsibility to society in general and to beneficiaries in particular to ensure that subsidised commodities meant reach them in time and upto the requisite quantity without causing any inconvenience to these huge number of people who are already victim of their destiny. If any person responsible for executing the system is found guilty of any irregularity or illegality, he must be dealt with very strictly and with iron hands. No sympathy or equity would come in his favour to ignore his lapses since such lapses and irregularities may have caused and created a question of sustenance to sufferers. However, simultaneously the executive authorities also cannot be allowed to act whimsically and to settle their score or to please political bosses by disturbing the already appointed agents/dealers on whims and caprice. The agents and distributors, engaged in the system, contributing by almost a whole time job, have atleast the bare minimum statutory and constitutional right of "equal treatment" which is fair, just and impartial. Any complaint received against them alleging irregularity is not to be dealt with an inherent bias against the dealer but should be enquired impartially, judiciously and objectively. If any executive authority is found to have failed in discharge of his duties in the manner, as aforesaid, he/they also deserve for an stern action for their lapses and more so when the lapses are encouraged by reasons other than bona fide and travels in the realm of malice in law. Here is a case where I find that action of respondents no. 2 and 3 is vitiated for the reasons, as aforesaid.
25. In view of above discussions, the writ petition is allowed. The impugned orders dated 24.09.2011 and 13.02.2012 are hereby quashed.
26. Since the petitioner has been forced to indulge himself in this avoidable litigation on account of sheer illegal and malicious action of respondents no. 2 and 3, in my view, he is entitled to exemplary costs, which I quantify to Rs. 50,000/- against respondents. At the first instance the amount of cost shall be paid by respondent no. 1 but it shall have the liberty to recover the aforesaid amount from concerned officials, who held the office of respondents no. 2 and 3 at the relevant time and are responsible for passing the orders impugned in this writ petition, after making such inquiry as prescribed in law.
Order Date :- 11.5.2012 AK