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2000 DIGILAW 109 (PAT)

Brij Mohan Mishra v. State Of Bihar

2000-01-20

S.K.KATRIAR

body2000
Judgment 1. s writ petition is directed against the order dated 3.2.99 (Annexure-2), passed by the Commissioner of Magadh Division, Gaya, in Supply Appeal No. 39/98 (Brij Mohan Mishra vs. State of Bihar), whereby he has dismissed the petitioners appeal, and has upheld the order dated 24.6.98 (Annexure-1), passed by the District Supply Officer in L.No.9/91 (Mishra Trading vs. State of Bihar). By the said order dated 24.6.98, the District Supply Officer had cancelled the licence of the petitioner under the Bihar Trade Articles (Licences Unification) Order, 1984, (hereinafter referred to as the Order), on the ground that the petitioner has not been carrying on his business at the allotted place. 2. The petitioner was granted licence under the Order to carry on whole-sale business in foodgrains in the allotted place within the precincts of the Bazar Samiti, Gaya. The District Supply Officer received adverse reports from different authorities that the petitioner never carried on his business from the allotted place, and was operating from outside. In that view of the matter, the aforesaid order 24.6.98 (Annexure-1) was passed whereby the petitioners licence was cancelled. The petitioner thereafter preferred an appeal before the Divisional Commissioner, Gaya, and submitted that the aforesaid order dated 24.6.98 (Annexure-1) was passed without notice to him, and he was also not supplied with copies of reports adverse to him and adverted to in the order. After consideration of the materials, the appellate order dated 3.2.99 (Annexure-2) was passed in Supply Appeal No. 39/98 (Brij Mohan Mishra vs. State of Bihar), whereby the Divisional Commissioner, Gaya, dismissed the appeal of the petitioner. 3. While assailing the validity of the impugned order, learned counsel for the petitioner submitted that the order of the District Supply Officer was bad in law, inasmuch as he was not afforded a reasonable opportunity to explain his position and was also not supplied with copies of the adverse reports adverted to in the impugned order. He relies on a Full Bench judgment of this court reported in 1983 PLJR 266 (Ramnandan Prasad vs. State of Bihar). He relies on a Full Bench judgment of this court reported in 1983 PLJR 266 (Ramnandan Prasad vs. State of Bihar). Learned counsel also invites my attention to the order dated 24.9.98 (Annexure-3), passed by the Commissioner of Magadh Division in case No. 19/98, passed on an appeal preferred by completely different persons but relating to similar issues as in the present case, whereby the matter was remitted back to the first authority for fresh judgment after affording a reasonable opportunity to the appellants of that case. 4. Learned Government counsel appearing for the respondents submits that the appellate order has been passed in the presence of the petitioner herein, and he had every opportunity to explain his position before the appellate court but he completely failed to do so. Not even semblance of an attempt was made. Learned counsel further submits that the aforesaid order dated 24.9.98 (Annexure-3), was passed in case no. 19/98, in a different context, inasmuch as the appellants therein were able to convince the appellate court about a prima facie case and, therefore, the matter was remitted back to the first authority, which is not the position in the present case. 5. Having considered, the rival submissions of the parties, I am of the view that his writ petition has to be allowed. Learned counsel for the petitioner has rightly relied on the aforesaid reported judgment of this court which lays down to the effect that once the initial order cancelling the licence by the Collector is held to be invalid such invalidity cannot be cured by the fact that the petitioners had an opportunity to say, whatever they had to say, before the appellate or revisional authority. Paragraph 11 of the judgment is relevant in the present context, and is set out hereinbelow for the facility of quick reference: "11. The question that still survives consideration is whether the illegality in the order of the Collector, copy of which is Annexure 1 is cured by the fact that the petitioners got an opportunity to say, whatever they had to say, when they went up in appeal before the Commissioner of Excise and in revision before the Member, Board of Revenue. The question that still survives consideration is whether the illegality in the order of the Collector, copy of which is Annexure 1 is cured by the fact that the petitioners got an opportunity to say, whatever they had to say, when they went up in appeal before the Commissioner of Excise and in revision before the Member, Board of Revenue. Admittedly, the petitioners had received the copy of the recommendation of the Superintendent of Excise, which is Annexure 8, before they went up in appeal to the Commissioner of Excise, who affirmed the decision of the Collector. In Farid Ahmed Abdul Samad and another v. The Municipal Corporation of the City of Ahmedabad and another (A.I.R. 1976 Supreme Court 2095) it was held that when the order at its inception is invalid, the invalidity cannot be cured by its approval of the Standing Committee or by confirmation of the State Government. Therefore, if the order, at the inception, is invalid, approval by the superior or appellate authority cannot cure it of its initial invalidity. Similarly, in M/s. Kashiram Dalmia v. The State of Bihar and others (A.I.R. 1978 Patna 264) a Bench of this Court held that the fact that adequate opportunity was afforded to the aggrieved party at the appellate stage did not cure the defect of want of notice by the original authority. Therefore, I am inclined to take the view that once the initial order cancelling the licence by the Collector is held to be invalid, such invalidity cannot be cured by the fact that the petitioners had an opportunity to say, whatever they had to say, before the appellate or revisional authority." 6. In that view of the matter the impugned order is hereby set aside. 7. In the result, this writ petition is allowed and the impugned order dated 3.2.99 (Annexure-2), passed by the Divisional Commissioner, Gaya, in Supply Appeal No. 39/98 (Brij Mohan Mishra vs. State of Bihar), is hereby set aside and the matter is remitted back to the first authority for a fresh order in accordance with law. 7. In the result, this writ petition is allowed and the impugned order dated 3.2.99 (Annexure-2), passed by the Divisional Commissioner, Gaya, in Supply Appeal No. 39/98 (Brij Mohan Mishra vs. State of Bihar), is hereby set aside and the matter is remitted back to the first authority for a fresh order in accordance with law. Let it be recorded that in view of the proceedings although culminating in the present petition, the petitioner has by now become fully aware of the allegations against him and, therefore, there is no necessity to serve any fresh show-cause notice to him, nor supply or inspection of copies of the adverse reports adverted to in the aforesaid order dated 24.6.98 (Annexure-1).