REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  4965        OF 2009 [Arising out of Special Leave Petition (Civil) No. 4563 of 2008]

MUKESH KUMAR AGRAWAL … APPELLANT

Versus

STATE OF U.P. & ORS.      … RESPONDENTS

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

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 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 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  

commodities in terms of the said 1981 Order on or about 1.4.1990, which  

was renewed till 31.3.2010.   Indisputably, on the premise that he had  

violated  the  terms  and  conditions  of  the  said  licence,  the  Licensing  

Authority  by  reason  of  an  order  dated  22.6.2002  cancelled  the  said  

licence.   

Appellant preferred a writ petition thereagainst in the High court.  

By  an  interim order  dated  9.7.2002,  the  operation  of  the  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 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,  U.P.   In the said raid,  3178  

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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  

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 Court stayed the  

order of his arrest.   

The District Supply Officer by his order dated 9.1.2008 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  

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.

4. Mr. Rakesh Dwivedi, learned Senior Counsel appearing on behalf  

of the appellant would contend that the High Court committed a manifest  

error in passing the impugned judgment insofar as it failed to take into  

consideration  that  the  very  fact  that  the  appellant’s  establishment  had  

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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 as the appellant had  

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 maintaining the same.   

5. Mr. Dinesh Dwivedi, learned Senior Counsel appearing on behalf  

of the respondents, however, would support the impugned judgment.   

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 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 said Shri Ramveer Upadhyay were not  

supported  by  any  material  which  would  lead  to  a  finding  of  malice  

against him.   

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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 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 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  tank,  whereas  

according to the Tank Calibration Chart 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  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 petition inter alia make  

out a case that the order and/or action taken therein was wholly without  

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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 SCC 1], but, in our considered opinion,  

in the present case no such case has been made out.   

10. There  cannot  be  any  doubt  or  dispute  whatsoever  that  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 been shown 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  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 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  

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order 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.   

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)

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  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  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  

(7) SCALE 622)]

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13. For the aforementioned reasons, the appeal is dismissed with costs.  

Counsel’s fee assessed at Rs.10,000/-.

……………………………….J. [S.B. Sinha]

..………………………….. …J.     

[Cyriac Joseph]

New Delhi; July 31 , 2009

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