MUKESH KUMAR AGRAWALversusSTATE OF U.P. & ORS.

                        1[2009] 11 S.C.R. 854


A                  MUKESH KUMAR AGRAWAL
                                   v.
                       STATE OF U.P. & ORS.
                  (Civil Appeal No. 4965 of 2009)
                           JULY 31, 2009
B
            [S.B. SINHA AND CYRIAC JOSEPH, JJ.]

          Constitution of India, 1950: Article 226 - Writ petition
  · cannot be dismissed summarily when the a/legations made
C therein make out a case fhat the order and/or action taken by
    the authorities was wholly without jurisdiction and/or in
    violation of the principles of natural justice - On facts, writ
    petition challenging the order of cancellation of licence - High
    court dismissed writ petition holding that the a/legations of
D malice made therein were vague in character - Impugned
    order of High Court does not suffer from infirmity - Uttar
    Pradesh High Speed Diesel Oil and Light Diesel Oil
    (Maintenance of Supplies and Distribution) Order, 1981.

E      Appellant was a dealer in High Speed Diesel Oil and
  Light Diesel Oil. He was granted a licence for dealing in
  the said commodities in terms of Uttar Pradesh High
  Speed Diesel Oil and Light Diesel Oil (Maintenance of
  Supplies and Distribution) Order, 1981. The Authorities
  cancelled his licence by order dated 22.6.2002 for
F violation of terms and conditions of licence. He filed writ
  petition. By interim order, stay of order dated 22.2.2002
  was granted. During pendency of writ petition filed by the
  appellant, raids were conducted in his business premises
  by Department of Weight and Measures and Department
G of Food and Civil Supplies. 3178 liters of High Speed
  Diesel Oil was found in excess. Show cause notice was
  issued asking appellant as to why his licence be not
  cancelled. FIR was a'lso lodg1ed. Appellant filed writ
  petition for quashing FIR. High Court stayed the order of
H                            854
           MUKESH KUMAR AGRAWAL v. STATE OF U.P. &                855
                           ORS.
     '
         his arrest. The District Supply Officer by his order dated      A
         9.1.2008 cancelled the licence of the appellant.
         Questioning the said order, appellant filed a writ petition
         on the premise that the allegations contained in the show
         cause notice were differ~nt from those made in the FIR
         insofar as the notice did not specify that any sale through     B
         unauthorized persons had taken place. The writ petition
         was dismissed by the High Court opining that the
         appellant has an alternative remedy.

               In appeal to this Court, it was contended for the
         appellant that High Court failed to take into consideration     c
         that the appellant's establishment was repeatedly ·raided
         by way of political vengeance for which he had to move
         the High Court again and again and that the entire
         proceeding against him was mala fide having been
         initiated at the instance of the Minister who was a political   D
'        rival as the appellant had fought an election against him.

             Dismissing the appeal, the Court

              HELD: 1. High Court by reason of the impugned
                                                                         E
         judgment opined that although the Minister contested an
         election against the appellant in the years 2002 and 2007,
         the allegations of mala fide were vague in nature. It was
         furthermore opined by the High Court that the averments
)        made in the writ application in regard to the malice of fact
         against the Minister were not supported by any material         F
         which would lead to a finding of malice against him. [Para
         6] [859-G-H; 860-A-B]

             2. Appellant indisputably was holder of a licence
         granted to him in terms of the provisions of the U.P. High      G
         Speed Diesel Oil and Light Diesel Oil (Maintenance of
..       Supplies and Distribution) Order, 1981. Clause 16(1) of the
         1981 Order obligates the licensee to display a stock of
         price board at his business premises showing opening
         balance of High Speed Diesel Oil or Light Diesel Oil and        H
    856      SUPREME COURT REPORTS             [2009) 11 S.C.R.


A the rate per liter as also the closing balance recorded at
  the end of the day. Clause 14 of the conditions of the
  licence mandates a licensee to maintain a stock register.
  The contention of the appellant is that he did not hold any
  stock of High Speed Diesel Oil in excess, as he had
8 received 3000 liters of 'diesel at about 12:00 p.m. on
  8.11.2007, that is, before the raid was conducted. From a
  perusal of the show cause notice, however, it appears
  that the allegations against him was that he had stored
  8300.47 liters of diesel in the underground tank, whereas
C according to the Tank Calibration Chart measuring 83
  centimeters, the amount of diesel oil stored therein was
  calculated at 7523.05 liters. Appellant in his writ
  application contended that he had not been given a copy
  of the inspection report at the spot. Furthermore it was
  contended that the District Supply Officer had proceeded
D against him with a pre-determined view. (Paras 7 and 8)
  (860-8-F]

       3. It is true that ordinarily a writ petition cannot be
  dismissed summarily when the allegations made in the
E writ petition make out a case that the order and/or action
  taken therein was wholly without jurisdiction and/or in          -
  violation of the principles of natural justice. In the present
  case no such case was made out. [Para 9) [860-F-H]

F      Whirlpool Corporation v. Registrar of Trade Marks,
    Mumbai & Ors. (1998) 8 SCC 1, held inapplicable.

       4. There cannot furthermore be any doubt or dispute
  that the court can go into the question where malice of
  fact is alleged. The High court, however, upon
G considering the averments made in the writ petition,
  found that the allegations of malice made therein were
  vague in character. The appellant, thus, was entitled to
  raise all his contentions before the authorities under the
  1981 Order. The distinction between a malice of fact and
H malice in law must be borne out from records; whereas
   MUKESH KUMAR AGRAWAL v. STATE OF U.P. &                857
                   ORS.

in a case involving malice in law which if established may      A
lead to an inference that the statutory authorities had
acted without jurisdiction while exercising its jurisdiction,
malice of fact must be pleaded and proved. [Paras 11 and
12) [861-F-H; 862-A-B]
                                                                B
      Pratap Singh v. State of Punjab AIR 1964 SC 72, relied
on.

      Swaran Singh Chand v. Punjab State Electricity Board
(2009) 7 SCALE 622, relied on.
                                                                c
                       Case Law Reference:
      (1998) 8 sec 1            held inapplicable Para 9
      AIR 1964 SC 72            relied on           Para 11
      (2009) 7 SCALE 622        relied on           Para 12     D

    CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
4965 of 2009.

    From the Judgment & Order dated 04.02.2008 of the High      E
Court of Judicature at Allahabad in W.P. No. 5255 of 2008.

     Rakesh Dwivedi, Vishwajit Singh, Siddharth Sengar, for
the Appellant.

    Dinesh Dwivedi, Sandep Singh, Anil Kr. Jha for the          F
Respondents.

      The Judgment of the Court was delivered by

      S.B. SINHA, J. 1. Leave granted.
                                                                G
      2. Appellant is before us aggrieved by and dissatisfied
with a judgment and order dated 4.2.2008 passed by a Division
Bench of the High Court of Judicature at Allahabad in Writ
Petition No. 5255 of 2008 whereby and whereunder the writ
petition filed by the appellant questioning the validity of a   H
    858       SUPREME COURT REPORTS               (2009] 11 S.C.R.


A judgment and order dated 9.1.2008 has been dismissed.
       3. Appellant was a dealer in High Speed Diesel Oil and
  Light Diesel Oil. Business in the said commodity is governed
  by the U.P. High Speed Diesel Oil and Light Diesel Oil
  (Maintenance of Supplies and Distribution) Order, 1981 (for
B short, "1981 Order"). The said 1981 Order has been framed in
  terms of Section 3 of the Essential Commodities Act, 1955.
  Appellant was granted a licence for dealing in the said
  commoditiies in terms of the said 1981 Order on or about
  1.4.1990, which was renewed till 31.3.2010. Indisputably, on the
C premise that he had violated the terms and conditions of the
  said licl'lnce, the Licensing Authority by reason of an order
  dated 22.6.2002 cancelled the said licence.
        Appellant prefer~ed a writ petition thereagainst in the High
  court. By an interim order dated 9.7.2002, the operation of the
D order dated 22.6.2002 was stayed. During pendency of the
  said writ petition, the order of cancellation of licence was         •
  confirmed by the District Magistrate on 28.3.2003. Another writ
  petition came to be filed by the appellant on 7.4.2003 in the
  High Court and the said order dated 28.3.2003 passed by the
E District Magistrate was also stayed.
        Indisputably, again on 24.10.2007 and 8.11.2007, raids
  were conducted on the appellant's establishment by the
  Weights and Measures Department, Lucknow and Food Cell
  of Office of Additional Commissioner, Food and Civil Supplies,
F U.P. In the said raid, 3178 liters of High Speed Diesel Oil were
  found to be in excess. A show cause notice was issued on or
  about 13.11.2007 asking the appellant to show cause as to why
  his licence should not be cancelled. A First Information Report
  (FIR) was also lodged on 14.11.2007 purporting to be for
G violation of Sections 3/7 of the Essential Commodities Act,
  1955 as also the provisions of the 1981 Order.
       Appellant filed a Criminal Misc. Writ Petition for quashing
  the FIR lodged against him. In the said proceedings, the High
H Court stayed the order of his arrest.
  MUKESH KUMAR AGRAWAL v. STATE OF U.P. &                    859
            ORS. [S.B. SINHA, J.]

      The District Supply Officer by his order dated 9.1.2008 A
cancelled the licence of the appellant. Questioning the said
order, appellant filed a writ petition inter alia on the premise
that the allegations contained in the show cause notice were
different from those made in the FIR insofar as the notice did
not specify that any sale through unauthorized persons had B
taken place.

    By reason of the impugned judgment, the said writ petition
has been dismissed by the High Court opining that the appellant
has an alternative remedy.
                                                                   c
      4. Mr. Rakesh Dwivedi, learned Senior Counsel
 appearing on behalf of the appellant would contend that the
 High Court committed a manifest error in pas~ing the
impugned judgment insofar as it failed to take into
consideration that the very fact that the appellant's D
establishment had repeatedly been raided by way of political
vengeance for which he had to move the High Court again and
again is itself a pointer to the fact that the entire proceeding
against him was mala fide having been initiated at the instance
of the Minister who was a political rival ;is the appellant had E
fought an election against him. Learned counsel would contend
that the existence of alternate statutory remedy by itself cannot
be a ground for dismissing a writ petition summarily as it is
well known that when an order is passed without jurisdiction,
existence of alternative remedy would not be a, bar for F
maintaining the same.

    5. Mr. Dinesh Dwivedi, learned Senior Counsel appearing
on behalf of the respondents, however, would support the
impugned judgment.
                                                                    G
     6. It is no doubt true that the appellant in his writ petition
has made out a case of malice against one Shri Ramveer
Upadhyay, Cabinet Minister for Power/Energy. The High Court
by reason of the impugned judgment opined that although the
said Shri Ramveer Upadhyay contested an election against the H
    860        SUPREME COURT REPORTS               (2009] 11 S.C.R.
                                                                         ~


A   appellant in the years 2002 and 2007, the allegations 'bf mala
    fide were vague in nature. It was furthermore opined by the High
    Court that the averments made in the writ application in regard
    to the malice of fact against said Shri Ramveer Upadhyay were
    not supported by any material which would lead to a finding of
8   malice against him.

        7. Appellant indisputably was holder of a licence granted
  to him in terms of the provisions of the 1981 Order. Clause
                                                                         •
   16(1) of the of the 1981 Order obligates the licensee to display
  a stock of price board at his business premises showing
c opening balance of High Speed Diesel Oil or Light Diesel Oil
  and the rate per liter as also the closing balance recorded at
  the end of the day. Clause 14 of the conditions of the licence
  mandates a licensee to maintain a stock register. The
  contention of the appellant is that he did not hold any stock of
D High Speed Diesel Oil in excess, as he had received 3000
  liters of diesel at about 12:00 p.m. on 8.11.2007, that is, before
  the raid was conducted. From a perusal of the show cause
  notice, however, it appears that the allegations against him was
  that he had stored 8300.47 liters of diesel in the underground
E tank, whereas according to the Tank Calibration C~art
  measuring 83 centimeters, the amount of diesel oil stored
  therein was calculated at 7523.05 liters.

         8. Appellant in his writ application had inter alia contended
    that he had not been given a copy of the inspection report at
F
    the spot. Furthermore it is contended that the District Supply
    Officer had proceeded against him with a pre-determined view.

        9. It is true that ordinarily a writ petition cannot be
  dismissed summarily when the allegations made in the writ
G petition inter alia make out a case that the order and/or action
  taken therein was wholly without jurisdiction and/or in violation
  of the principles of natural justice as has been held by this Court
  in Whirlpool Corporation vs. Registrar of Trade Marks,
  Mumbai & Ors. ((1998) 8 sec 1], but, in our considered
H opinion, in the present case no such case has been made out.
             MUKESH KUMAR AGRAWAL v. STATE OF U.P. &                     861
                       ORS. [S.B. SINHA, J.]
 ~


                10. There cannot be any doubt or dispute whatsoever that         A
           the authorities of the Weights and Measures Department as
           also the Food Cell of Office of Additional Commissioner, Food
           and Civil Supplies, U.P. were entitled to inspect the business
           premises of the appellant and carry out searches. Indisputably
           again, possession of higher quantity of diesel oil than that has      B
           been s.hown in the stock book would amount to contravention
           of the provisions of the licence and/or licensing Order. The
.'-        appellant in invoking the writ jurisdiction of the High Court Order
           raised contentions involving disputed questions of fact.
           Ordinarily, the disputed questions of fact are not determined         c
           in a writ petition. We would, however, hasten to add that the
           same would not mean that the High Court cannot exercise its
           discretionary writ jurisdiction for determination of disputed
          questions of fact or only because some dispute had been
           raised in the writ proceedings itself the same would deter the        D
.,(   .    High Court from exercising its jurisdiction. The appellant has
          raised pure questions of fact for determination in the writ
          proceedings in respect whereof the Licensing Authority itself
          was required to go into the materials brought on record by both
          the parties. It is neither denied nor disputed that the order
                                                                                 E
          passed by the Licensing Authority cancelling the licence of a
          dealer is an appellable one~ The Appellate Authority is entitled
          to go into the questions of both law and fact The High Court,
          therefore, in our opinion, cannot be said to have committed any
)         error in refusing to entertain the writ petition. It is, thus, not a
          case where the ratio laid in Whirlpool (supra) is applicable.          F

               11. There cannot furthermore be any doubt or dispute that
          the court can go into the question where malice of fact is
          alleged. (See Pratap Singh v. State of Punjab AIR 1964 SC
          72)                                                                    G

 ~            12. The High court, however, upon considering the
          averments made in the writ petition, as noticed hereinbefore,
          found that the allegations of malice made therein are vague in
          character. The appellant, thus, was entitled to raise all his
                                                                                 H
    862       SUPREME COURT REPORTS             (2009) 11 S.C.R.


A   contentions including the aforementioned contention before the
    authorities under the 1981 Order.

        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
8
  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. [See
  Swaran Singh Chand v. Punjab State Electricity Board 2009
C (7) SCALE 622)]

        13. For the aforementioned reasons, the appeal is
    dismissed with costs. Counsel's fee assessed at Rs.10,000/-


    D.G.                                      Appeal dismissed.

                                                                     •