Research › Search › Judgment

Patna High Court · body

2006 DIGILAW 488 (PAT)

Ganesh Prasad Shah v. State of Bihar

2006-06-12

body2006
ORDER Upon a joint request of learned counsels appearing for the parties, the matter is take up for final hearing. Therefore, Learned counsels are heard and the matter is being decided today itself. 2. The petitioner has questioned the legality and validity of the order contained in memo no. 219 Aa dated 30.9.2003, annexure 5 to the petition, passed by the Sub-divisional Officer, Ara, respondent no.3, whereby and whereunder, the licence No. 102 of 1986 given to the petitioner under the Public Distribution System for Fair Price Shop in terms of the provisions of the Bihar Trade Articles (Licenses Unification) Order 1984 (the Unification Order) issued under the Essential Commodities Act, 1955, came to be cancelled and the petitioner's contention has been that the same is against the provision of law and without jurisdiction. 3. The impugned order is examined. It does not remotely manifest or even insinuate that the provision contemplated in Clause 11(1) of the said Unification Order has been violated. No show cause notice is served. No opportunity of hearing is given. It is, therefore, contended that initially the suspesnion of licence in terms of Clause 11 (2) may be legal but it could not be valid beyond the period of ninety days and thereafter the cancellation of the suspended licence without observing any procedure prescribed or following the principle of natural justice is without jurisdiction and, therefore, illegal and requires to be quashed. 4. At this stage, let there be a reference to the provisions of Clause 11 of the said Unification Order of the Government which read herein as under: "11. Suspension and cancellation of Licence:-(1) If any licensee or his agent or servant or any other person acting on his behalf contravenes any of the terms and conditions of the licence, then without prejudice to any other action that may be taken against him under the Essential Commodities Act, 1955 (Central Act 10 of 1955) his licence may be cancelled or suspended" with regard to one or more trade articles by an order in writing of the Lincensing Authority and an entry will be made in his licence relating to such suspension or cancellation. (2) No order of cancellation shall be made under this clause unless the licensee has been given a reasonable opportunity stating his case against the proposed cancellation but during the pendency or in contemplation of proceedings of cancellation of licence, the licence can be suspended for a period not exceeding 90 days without giving any opportunity to the licensee of stating his case. Such suspension shall be limited only contravention has been made by the licensee." 5. It become manifest and evident that in an exceptional case for temporary period of 90 days without observing the due process of law and principle of natural justice the action as contemplated for suspension is provided in clause 11(2) only, but for cancellation of the Fair Price Shop licence against the licensee under clause 11(1) & (2) of the said Unification Order such procedure is obligatory. 6. Nothing has been, successfully, pointed out from the record that such opportunity was ever afforded to the petitioner licensee before cancellation of licence. The suspension of the licence to run the Fair Price Shop is an exception and is an interim measure whose life is only for ninety days. After expiry of the statutory stipulated period of ninety days if no any inquiry is concluded on the ground of alleged violation of the terms and conditions of the licence then obvisouly the suspension of the licence shall stand revoked. In this situation, how can there be a cancellation of the licence without observing the process prescribed in Clause 11(1) and the principle of natural justice? Therefore, in the opinion of this Court, the impugned order is quite illegal and un-authorised and, therefore, it has to be quashed and set aside by invocation of the provision of Articles 226 of the Constitution of India. The view which this court is inclined to take is, also, fortified by the decisions rendered by 'this Court in the case of "M/s Shyam Bhandar Vs. State of Bihar": 1989 PLJR 1023, in the case of "Punsraj Begawani Vs. State of Bihar": 1987 PLJR 1150 and in the matter of "Yugal Kishore Rastogi Vs. State of Bihar": 1988 PLJR 571. Consequently, the impugned order shall stand quashed and set aside with an observation that it will be open for the respondent authority to pursue the matter further by following the principles laid down in Clause 11(1) & (2) of the aforesaid. 7. State of Bihar": 1988 PLJR 571. Consequently, the impugned order shall stand quashed and set aside with an observation that it will be open for the respondent authority to pursue the matter further by following the principles laid down in Clause 11(1) & (2) of the aforesaid. 7. Unification Order of the Government issued under the Essential Commodities Act, 1955 as a result of which, the impugned order will have no any effect or survival value. The impugned order dated 30.9.2003 shall, therefore, stand revoked and quashed. 8. In the result, this petition shall stand allowed with cost of Rs. 2000/-.