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2006 DIGILAW 489 (PAT)

Rama Shankar Ram v. State of Bihar

2006-06-12

J.N.BHATT

body2006
ORDER : 1. Upon joint request, this matter is taken up for final hearing today. The learned Counsel have offered their submissions during the course of the hearing. 2. The main grievance of the petitioner in this writ petition has been that the suspension of his licence to run Fair Price Shop w.e.f. 25.6.2005 will have a life of 90 days in terms of the provision of Clause 11 Sub-clause (2) of the Bihar Trade Articles (Licenses Unification) ORDER :, 1984 (hereinafter referred to as the ORDER :) and that period has expired and during that period the so-called contemplated inquiry on the ground of contravention of the terms and conditions of the licence to run the Fair Price Shop has not been concluded. 3. It is in this context, it is submitted that the impugned ORDER :has become, now, illegal and suspension cannot be permitted beyond the period of 90 days and against that the learned Counsel appearing for the respondent-authorities has only contended that the petitioner has to move the appropriate authority after the period of 90 days since power has been exercised under Clause 11 (2) of the ORDER :. 4. Clause 11 (2) of the ORDER :reads herein as under:– 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 statings his case. Such suspension shall be limited only to those trade articles regarding which contravention has been made by the licensee. 5. It means that it is necessary for the authority to conclude the inquiry within the period of 90 days, which is exception to the provision of Clause 11 (1), and if it is not done the concerned party cannot be allowed to suffer to move the authority for renewal of the licence. 6. 5. It means that it is necessary for the authority to conclude the inquiry within the period of 90 days, which is exception to the provision of Clause 11 (1), and if it is not done the concerned party cannot be allowed to suffer to move the authority for renewal of the licence. 6. Obviously, when the statutory provision makes it clear that there is power to suspend or cancel the licence upon following the procedure prescribed pertaining to the "audi alteram partem" only exception, which is carved out in certain emergency or important cases, is to suspend the licence to run the Fair Price Shop of a licensee for a period of only 90 days and if no conclusion is reached within the period prescribed in Clause 11 (2) of the ORDER :, obviously, logical and legal conclusion would be that the impugned ORDER :would not resume any further survival value resulting into revocation of suspension. 7. It is in this context, let it be noted that this Court in Yugal Kishore Rastogi vs. State of Bihar, 1988 PLJR 571 , has expounded the proposition interpreting the Clause 11 of the said ORDER :and has held that where the licence of a dealer was suspended without show cause till the completion of the confiscation proceeding, the ORDER :of suspension of licence on the same reasoning will be not legal. 8. There is no dispute about the fact that the suspension of licence is not by way of punishment in terms of the impugned ORDER :. 9. A person ordinarily cannot be punished without fair opportunity of hearing as it has been the cardinal principle of natural justice to give free and fair opportunity to the party concerned, who is visited with the civil and evil consequences, whether it is Fair Price Shop or any other matter under the ORDER :. Therefore, the power of suspension of the licence of a dealer in exercise of power under Clause 11 (2) beyond the period of 90 days without observance of the procedure prescribed under Clause 11 (1) will be not legal and valid. 10. The suspension ORDER :as it is in this present case in the light of the impugned ORDER :of the authority is not by way of punishment. It is only by way of interim measure with a life of 90 days. 10. The suspension ORDER :as it is in this present case in the light of the impugned ORDER :of the authority is not by way of punishment. It is only by way of interim measure with a life of 90 days. If no result is arrived at upon the alleged contravention of the terms and conditions of the licence ORDER :, such ORDER :, as it is in this present case, will not be effective beyond the period of 90 days. 11. Nothing has been exclusively highlighted or manifested from the said provision or nothing has been shown by the Counsel appearing for the respondents that the life of 90 days can continue until the petitioner runs and gets to the authority (if not, from pillar to post). Therefore, in the opinion of this Court, the suspension of licence beyond the period of 90 days will not be legal and valid. 12. The suspension of licence by way of punishment can only be recorded by providing a reasonable opportunity to the person concerned, even under the Clause 11 (1) of the ORDER :. The only exception under Clause 11 (2) is that the authority has been empowered to suspend the licence without observing the procedure prescribed or without following the principles of natural justice which will have a life of 90 days and not beyond that 90 days period have already been expired. Obviously, therefore, the impugned ORDER :to suspend the licence of Fair Price Shop shall not survive. Therefore, the petition has to be allowed and the impugned ORDER :has to be quashed. This view is, also, fortified by several decisions of this High Court. The same view was taken by this Court in M/s. Shyam Bhandar vs. State of Bihar, 1989 PLJR 1023 , and Punsraj Begawani vs. State of Bihar, 1987 PLJR 1150 . 13. Therefore, the petition has to be allowed and the impugned ORDER :has to be quashed. This view is, also, fortified by several decisions of this High Court. The same view was taken by this Court in M/s. Shyam Bhandar vs. State of Bihar, 1989 PLJR 1023 , and Punsraj Begawani vs. State of Bihar, 1987 PLJR 1150 . 13. The principles laid down in the aforesaid decisions and the plain perusal of Clause 11, leave no any manner of doubt that in case of suspension of licence of a dealer without show cause or affording an opportunity of being heard, it will be deemed as an interim ORDER :of suspension, which will have maximum life of 90 days and if during the period of 90 days no proceeding for cancellation of licence is initiated and completed, the ORDER :of suspension will have no legal effect and the licensee will be free to carryon his business. On the aforesaid principles and discussions, the impugned ORDER :suspending the licence of the petitioner, who is a dealer and runs a Fair Price Shop, will have to be set aside. Accordingly, it shall stand set aside and it will be open for the petitioner to start his business. 14. However, if the respondent authority wants to pursue the matter further by observance of the provision of Clause 11 (1), it is for the authority concerned to consider and deal with the matter. In the result, the impugned ORDER :is quashed and set aside and the petition is allowed with cost of Rs. 5000/- to be deposited by the State with the Registrar General of this Court. The amount on being deposited shall be given to the petitioner. Rule is made absolute.