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SMT. MUSTRAI BEGUM versus STATE OF U.P. THRU' SECY. & OTHERS

High Court of Judicature at Allahabad

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Smt. Mustrai Begum v. State Of U.P. Thru' Secy. & Others - WRIT - C No. 31387 of 2005 [2005] RD-AH 1622 (12 July 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 34

CIVIL MISC. WRIT PETITION NO. 31387 OF 2005

Smt Mustrai Begum       -------------    Petitioner              

         Versus.

State of U.P. & Ors.        -------------  Respondents

_________

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Dilip Gupta, J.

(By Hon'ble Dr. B.S. Chauhan, J.)

This writ petition has been filed for quashing the order dated 6.4.2005 (Annex. 3), by which licence of the petitioner of the fair price shop has been put under suspension. A further prayer has also been made to quash the Government Orders dated 13.1.2000 and 3.7.1990 and for striking down U.P. Scheduled Commodities Distribution Order, 1990.

The petitioner had been granted licence of a fair price shop under U.P. Scheduled Commodities (Distribution) Order, 1990. Learned counsel for the petitioner  submits that her licence has been suspended vide impugned order dated 6.4.2005 for extraneous consideration, i.e., under the political pressure of the Hon'ble Minister Shri Azam Khan (respondent no. 3) and therefore the same is liable to be quashed.

Learned  counsel for the petitioner has further submitted that there are serious allegations of mala fide against respondent no. 3 and in spite of receiving the notice, he has not filed the reply to the same. In such circumstances the Court must draw an inference of acceptance of the allegations of mala fide as it remains unrebutted, and the petition deserves to be allowed. More so, the Government Orders mentioned in prayer 2 of the relief clause are liable to be quashed being in contravention of certain constitutional provisions. However at this stage, it is submitted by Shri Dubey, learned counsel for the petitioner that those Government Orders mentioned in the petition and prayer clause to it have also been repealed by the new U.P. Scheduled Commodities (Distribution) Order, 2004.

On the contrary, the learned Standing Counsel appearing for the respondents has submitted that the allegations of mala fide made in the petition are not such which deserve to be taken note of, as there is no pleading in the petition that Hon'ble Minister, respondent no.3, had ever asked any authority to suspend the licence of the petitioner. Petition is vaguely drafted and thus liable to be dismissed.

We have considered the rival submissions made by the learned counsel for the parties and perused the record.

The averments of allegations as relied upon by the learned counsel for the petitioner are in paragraphs no. 5 to 7 to the petition which are quoted hereunder.

"5. That the interested persons under the banner of respondent no.3 made baseless complaint against the shop in question including 2 other Fair Price Shops situated, in the same village. The respondent no.3, it is alleged on the complaints of those persons lost temper and asked villagers that such Fair Price Shop holders should be dragged and they should be produced before District Magistrate, Rampur. The respondent no.3 also said in that meeting on 3.4.2005, that in case no essential commodities are issued by Fair Price Shop holders to the ration card holders, they should snatch essential commodities from them.

6. That in accordance with the speech given by respondent no.3 the District Magistrate, Rampur and Sub Divisional Magistrate, Sadar, reached Kakroua and it is alleged that they enquired into the so called irregularities in distribution of essential commodities. It will be not out of place to mention here that on 3.4.2005, being Sunday the Fair Price Shops in the village Kakroua were closed. It is alleged that on the basis  of the so called enquiry, the Sub Divisional Magistrate, found irregularities. The Sub Divisional Magistrate, respondent no.2 said that all the 3 Fair Price Shops situated in village Kakroua (including the shop in question) are being suspended. The news was published in daily news paper, ''Amar Ujala' dated 4.4.2005. The said news was also published in evening Local News Paper ''Rampur Vanni' dated 3.4.2005, to the effect that respondent no.3 asked the public to commit dacoity (loot) of the essential commodities from the Fair Price Shops. The aforesaid news was also published in another news paper ''Dainik Jagaran' dated 4.4.2005. Photostat Copies of the paper cutting of the 3 news papers collectively are being filed as Annexure-2 to the writ petition.

7. That it is on the basis of the political pressure and direction of respondent no.3 that the Fair Price Shop in question of the petitioner was suspended without any rhyme and reason on the alleged irregularities (whereas those irregularities have not at all been disclosed) vide suspension order dated 6.4.2005. A true copy of the suspension order which has been issued from the office of respondent no.2 vide letter no. 120/ S.D.M. Supply-5 dated 6.4.2005, is being filed as Annexure-3 to the writ petition."    

It is evident from the aforesaid pleadings that admittedly it is not the case of the petitioner that the respondent no. 3 has asked any  of the authorities to suspend or cancel the licence of the petitioner. There is no averment in the pleadings that the District Magistrate or the Sub Divisional Magistrate was present in the meeting. We are not in a position to draw the inference that they should have been present there because the Hon'ble Minister's programme had been circulated by the District Collector. Thus, there is no specific allegations made against the respondent no. 3 that he had ever issued any direction or asked any of the authorities to suspend the licence of the petitioner.

An issue of "malus  animus" was considered in Tara Chand Khatri Vs. Municipal Corporation of Delhi & ors., AIR 1977  SC 567,  wherein the  Hon'ble  Supreme Court has  held  that  the High  Court  would  be justified  in refusing to carry on  investigation into the  allegation  of mala fides, if  necessary particulars  of  the  charge making out  a  prima facie case are not given in the writ petition and burden of establishing mala fide lies very heavily on the person who alleges it and there must be sufficient material to establish malus animus.    

Similarly, in E.P.  Royappa Vs.  State of Tamil Nadu & Anr.,  AIR 1974 SC 555, the Hon'ble Supreme Court observed as under:-

"Secondly,  we  must not  also  over-look  that the burden of establishing mala fides is  very heavy on the person who  alleges it..... The Court would, therefore,  be slow  to  draw  dubious  inferences  from incomplete  facts  placed before it by  a party,  particularly when the imputations are  grave and they are made against  the holder  of  an  office which has  a  high responsibility  in   the  administration. Such  is  the   judicial  perspective  in evaluating  charges  of unworthy  conduct against  ministers and other, not because of  any  special status.... but because otherwise,  functioning effectively would become difficult in a democracy."

The   Hon'ble  Supreme   Court,  in  M/s. Sukhwinder  Pal Bipan Kumar & Ors. Vs.  State of Punjab & Ors., AIR 1982 SC 65;  and Shivajirao Nilangekar Patil Vs.  Dr. Mahesh Madhav Gosavi & Ors., AIR 1987 SC 294; has made similar observations.

In  M.   Sankaranarayanan, IAS  Vs.   State  of Karnataka & Ors.,  AIR 1993 SC 763, the Hon'ble  Supreme Court observed  that  the  Court   may  "draw  a reasonable  inference of mala fide from the  facts pleaded and established.  But such inference must be based  on  factual  matrix  and  such  factual matrix cannot remain in the realm of institution, surmise or conjecture."

In  N.K. Singh  Vs. Union  of  India & Ors., (1994) 6  SCC  98, the Hon'ble Supreme Court  has held that  "the inference of mala fides should  be drawn by  reading in between the lines and taking into account the attendant circumstances."        

There has  to  be very strong and convincing  evidence to establish the allegations of mala fides specifically alleged in the petition as the same  cannot  merely  be  presumed.  The presumption  is in favour of the bona fides of the order unless contradicted by acceptable material. (Vide State of U.P.  Vs.  Dr.  V.N.  Prasad, 1995 Suppl (2)  SCC  151;  Arvind Dattatraya  Dhande Vs. State  of  Maharashtra & ors., (1997) 6  SCC 169;  Utkal University Vs.  Dr.  Nrusingha Charan Sarangi & Ors.,  (1999)  2 SCC 193;  Kiran Gupta &  Ors. Vs. State  of  U.P.  & Ors., (2000) 7  SCC  719; and Netai Bag & Ors.  Vs.  State of W.B. & Ors., (2000) 8 SCC 262).

In  State  of Punjab Vs.  V.K.  Khanna  & Ors., (2001)  2  SCC 330, the Hon'ble Apex  Court examined   the  issue  of   bias  and   mala fide, observing as under:-                              

"Whereas  fairness  is   synonymous  with reasonableness-   bias   stands  included within the attributes and broader purview of  the  word  'malice' which  in  common acceptation  means and implies 'spite' or 'ill will'.  One redeeming feature in the matter of attributing bias or malice and is now well settled that mere  general statements will not be sufficient for the purposes  of  indication  of  ill   will. There must be cogent evidence  available on record to come to the conclusion as to whether  in  fact, there was  existing  a bias or a mala fide move which results in the  miscarriage  of  justice.......   In almost all  legal inquiries, 'intention as distinguished   from   motive    is   the all-important  factor'  and   in   common parlance  a malicious act stands  equated with  an  intentional  act  without  just cause or excuse."                        

Similar  view  has   been  reiterated  in Samant & Anr.  Vs.  Bombay Stock Exchange & Ors., (2001) 5 SCC 323.

In First Land Acquisition Collector & ors. Vs. Nirodhi Prakash Gangoli & Anr., (2002) 4 SCC 160; and Jasvinder Singh & Ors. Vs. State of J & K & Ors., (2003) 2 SCC 132, the Apex Court held that burden of proving mala fides is very heavy on the person who alleges it. Mere allegation is not enough. Party making such allegations is under the legal obligation to place specific materials before the Court to substantiate the said allegations.

Petitioner was  supposed  to  plead  and prove the allegations against    the said Hon'ble Minister in a proper manner to make out a case of mala fide. There is no averment in the petition that the Hon'ble Minister, the respondent no. 3, had issued any direction to the District Collector or any other authority to suspend the petitioner's licence. The allegations made against the Hon'ble Minister are very vague and general in nature and there is nothing on record to show that the Hon'ble Minister had asked any authority to take any action against the present petitioner.

It  is settled proposition of law that  a party has  to plead the case and produce/adduce  sufficient evidence to substantiate his submissions  made in the petitions and in case the pleadings are not complete, the Court is under no obligation  to  entertain the pleas. In  Bharat Singh & Ors. Vs. State  of Haryana & Ors., AIR 1988 SC  2181, the Hon'ble Supreme Court has observed as under:-

"In  our opinion, when a point, which  is ostensibly a point of law is required to be  substantiated  by  facts,  the  party raising  the  point,  if he is  the  writ petitioner,  must  plead and  prove  such facts  by evidence which must appear from the  writ  petition  and  if  he  is  the respondent,  from the counter  affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or the counter-affidavit, as the case may be, the Court will not entertain the point. There is a distinction between a hearing under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, i.e. a plaint or written statement, the facts and not the evidence are required to be pleaded.  In a writ petition or   in the   counter affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it."        

Similar view has been reiterated in M/s. Larsen and  Toubro  Ltd. & Ors.  Vs.  State of Gujarat & Ors., AIR 1998 SC 1608; National  Buildings Construction  Corporation Vs. S. Raghunathan  & Ors., AIR  1998  SC 2779;  Ram Narain  Arora  Vs. Asha Rani  &  Ors.,  (1999) 1  SCC 141; Chitra Kumari Vs.   Union  of India, AIR 2001  SC 1237;  and  State  of U.P. Vs.   Chandra Prakash Pandey, AIR 2001 SC 1298.

In   Atul   Castings   Ltd.   Vs.    Bawa Gurvachan  Singh,  AIR 2001 SC 1684, the  Hon'ble Apex Court observed as under:-                    

"The findings in the absence of necessary pleadings and supporting evidence cannot be sustained in law."                    

Similar  view  has   been  reiterated  in Vithal N.   Shetti  &  Anr.    Vs.   Prakash   N. Rudrakar & Ors., (2003) 1 SCC 18.

A very heavy reliance has been placed upon the Government Order issued in 2004 by submitting that the said Government Order of 2004 which has superseded all other Government Orders does not contain any power to suspend. There are no pleadings to that effect in the petition and Court is not permitted to travel beyond the pleadings nor any amendment application has been moved.

There can be no dispute to the settled legal proposition that the Court or Tribunal is not permitted to decide a case going out of pleadings of the parties nor the evidence led on a non-existing plea is permitted to be taken into consideration. (Vide Sri Mahant Govind Rao Vs. Sita Ram Kesho, (1898) 25 IA 195 (PC); Messers Trojan & Co. Vs. RM. N.N. Nagappa Chettiar, AIR 1953 SC 235; Kishori Lal Vs. M/s. Chaltibai, AIR  1959 SC 504; Samant N. Balakrishan Vs. George Fernandez & Ors., AIR  1969 Sc 1201; Dalim Kumar Sain & Ors. Vs. Smt. Nand Rani Dassi & Anr., AIR 1970 Cal. 292; Rao Sahab Vs. Rangnath Gopalrao, AIR  1971 SC 2548; Bhoona Bi & Anr. Vs. Gujar Bi, AIR 1973 Mad 154; DR. R.K. S. Chauhan Vs. State of U.P. & Ors., 1995 Supp (3) SCC 688; Commissioner of Income Tax Vs. Park Hotel, (1996) 2 SCC 15; Syed Dastagir Vs. T. R. Gopalakrishna Setty, AIR  1999 SC 3029; Sankaran Pillai (Dead) by LRs Vs. Vs.P. Venuguduswami & Ors., AIR  1999 SC 1218; J. Jermons Vs. Aliammal, AIR 1999 SC 3041; Life Insurance corporation of India & Ors. Vs. Jyotish Chandra  Biswas, (2000) 6 SCC 562; OM Prakash Gupta Vs. Ranbir B. Goyal, (2002) 2 SCC 256; and Ashutosh Gupta Vs. State of Rajasthan & Ors., (2002) 4 SCC 34).

It is not possible for the Court to decide an issue, not raised/agitated by the authority for the reason that other party did not have opportunity to meet it and such a course would violate the principles of natural justice. (Vide New Delhi Municipal Council Vs. State of Punjab, AIR 1997 SC 2841).  Similarly, in Vs. K. Majotra Vs. Union of India & Ors., (2003) 8 SCC 40, the Apex Court held as under:-

"The Courts would be well advised to decide the petitions on the points raised in the petition and if in a rare case keeping in view the facts and circumstances of the case any additional points are to be raised then the concerned and affected parties should be put to notice on the additional points to satisfy the principles of natural justice. Parties cannot be taken by surprise."

Therefore, the plea in this respect cannot be entertained. More so if such a pleading is accepted, the prayer clause 2 of the petition becomes redundant and in view of the above, neither we are able to deal with the said Government Order of 2004 and nor the second relief claimed by the petitioner can be accepted as per the learned counsel for the petitioner the said Government Orders which are sought to be quashed do not survive any more.

In view of the above, the facts remain that the allegations of mala fide made by the petitioner against the Hon'ble Minister, the respondent no. 3, are not enough to take note of. The petitioner miserably failed to take the plea of mala fide and establish the same. The power to suspend cannot be doubted. The plea that power of suspension does not exist cannot be taken note of for want of pleadings as there is no such ground or averment in the petition. The learned counsel for the petitioner has relied upon a judgment in Naumi Ram Vs. Dy. Collector & Ors., (2001) 1 AWC 607, which has no application in the present case for the reason that the ratio of the said judgment is that without passing the order of suspension the supply of the foodgrains cannot be stopped. There is an F.I.R. against the petitioner under Section 3/7 of the Essential Commodities Act and a criminal case is pending. Undoubtedly in view of the judgment of this Court in Naumi Ram Vs. Dy. Collector & Ors. (supra) mere filing the F.I.R. is not a ground for suspension of a licence but it may be a good ground for the Court to draw the inference regarding the conduct of the petitioner and writ being a discretionary relief can be refused to such a person.

In view of the above, we are not inclined to interfere with the petition. Petition is accordingly dismissed.

12.7.2005

AKSI


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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