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Jharkhand High Court · body

2007 DIGILAW 874 (JHR)

Ashok Kumar Mandal v. State of Jharkhand

2007-11-27

N.N.TIWARI

body2007
JUDGMENT Narendra Nath Tiwari, J. 1. In this writ petition the petitioner has prayed for quashing the order as contained in Memo No. 119 dated 29.6.04 passed by the Sub-Divisional Officer Dhalbhum-cum-Licensing Authority, Jamshedpur whereby the petitioner's License No. 3/86-Patamda issued to him for carrying on the retail trading business under the Public Distribution System has been cancelled. The petitioner has also prayed for quashing the appellate order dated 27.10.05 passed by the Deputy Commissioner, East Singhbhum, Jamshedpur in Miscellaneous Appeal No. 18/04-05 whereby the Deputy Commissioner has dismissed the petitioner's appeal filed against the order of the Licensing Authority. The petitioner has also prayed for restoration of the agreement and original License No. 3/86-Patamda in his favour. 2. The case of the petitioner is that he was carrying on the retail business under the Public Distribution System under License No. 3/86-Patamda in the Village-Bamni, P.S. Patamda, District-East Singhbhum. Some scrupulous villagers, who were mainly the supporters of the political party "AJSU", with some ulterior motive and ill design lodged a malicious and mischievous information in Patamda Police Station alleging that they had seized a Mahindra Tractor bearing No. JH-O5-A-5295 with 110 Litres of kerosene oil which was being carried for illegal sale. Patamda Police registered Patamda P.S. Case No. 140/04 dated 18.3.04. Simultaneously the Supply Inspector, Rationing, Patamda also made enquiry and inspected the petitioner's shop and verified stocks of the shop. The Supply Inspector also verified Ration Cards and also inquired from about 129 card holders. Only 25 out of them alleged that the petitioner had supplied them less quantity and entered more in their Ration Cards. The supply Inspector seized the stock and sale registers of the petitioner. 3. On examination, the Supply Inspector found the colour of the seized kerosene oil as white whereas the colour of the kerosene oil supplied by the Government under Public Distribution System is blue. Though there was no violation of any provision of the Essential Commodities Act or any other law, the Supply Inspector arbitrarily reported about the irregularity in carrying on the business by the petitioner and recommended for necessary action against the petitioner. 4. A notice to show-cause was issued to the petitioner by the S.D.O-cum-Licensing Authority asking him as to why appropriate action should not be taken against him on the alleged complain. The petitioner's license was suspended by the licensing authority. 5. 4. A notice to show-cause was issued to the petitioner by the S.D.O-cum-Licensing Authority asking him as to why appropriate action should not be taken against him on the alleged complain. The petitioner's license was suspended by the licensing authority. 5. The petitioner filed reply to the show-cause notice denying the allegations and stating, inter alia, that he has neither committed any illegality nor has violated any term and condition of his license or any provision of the Unification Order under which the license was given to him. Some AJSU party workers had greedy eyes on the business of the petitioner, who in collusion with the respondent No. 2 concocted the entire story of non-supply of kerosene oil to the card holders and alleged indulgence of the petitioner in black marketing of the kerosene oil. It has been stated that some villagers, who are said to have political backing, tried to implicate the petitioner with ulterior motive. On due enquiry, the Police found that the seized kerosene oil was not of blue colour which was supplied for distribution among the card holders. The seized kerosene oil was of white colour which is available in the open market and sale or purchase of the same does not constitute any offence under Section 7 of the Essential Commodities Act and does not violate the terms of the license. 6. Though no case is made out under Section 7 of the Essential Commodities Act: against the petitioner, there was no violation of any term of the license on his part, the licensing authority by the impugned order dated 29.6.04 cancelled the petitioner's license. 7. Being aggrieved by the said order, the petitioner preferred appeal before the Deputy Commissioner (appellate authority) under the provisions of Section 28 of the Bihar Trade Articles (Licenses Unification) Order, 1984, The petitioner assailed the impugned order on several grounds. It was submitted that the order of cancellation was passed without any legal basis and is perverse. The seized kerosene oil was of white colour and as such there was no ground for making attempt of black marketing by the petitioner. The allegation of short supply by a few card holders was malicious and unfounded and the same was made by some interested persons. The seized kerosene oil was of white colour and as such there was no ground for making attempt of black marketing by the petitioner. The allegation of short supply by a few card holders was malicious and unfounded and the same was made by some interested persons. There were a number of statements of the genuine card holders who had rejected the allegations as baseless and the same have not been taken into consideration by the licensing authority. More than five hundred card holders were allotted to the petitioner's shop. According to the Government norms, every card holder has to be given five Litres of kerosene oil. But in place of required supply of 2535 Litres, short supply was made to the petitioner. The licensing authority failed to take into consideration that in view of short supply, proportionate short quantity has to be given to every consumer. The licensing authority without taking into consideration the explanation filed by the petitioner held him guilty. The appellate authority also did not consider the said aspect and grounds in appeal preferred by the petitioner and arbitrarily dismissed the appeal. 8. The respondents contested the writ petition. In the counter affidavit filed on behalf of the respondent Nos. 2 & 3, the impugned orders have been supported. It has been stated that the writ petition is not maintainable as the petitioner has got alternative remedy to move the Commissioner, East Singhbhum. There are no errors in the impugned orders as well. The petitioner was given opportunity to explain. On due consideration of his reply and other relevant aspects, the Licensing Authority passed the order of cancellation of the petitioner's license. The appellate authority has also considered the grounds taken by the petitioner and has passed a reasoned and valid order. 9. Learned Counsel appearing on behalf of the petitioner submitted that the petitioner's license has been arbitrarily and illegally cancelled without due consideration of his reply and material on record and without application of mind. on allegation, the Supply Inspector made enquiry and found the colour of the kerosene oil white. He had also taken the statements of a large number of villagers. The consumers have supported the petitioner's defence by stating that he has been property distributing the articles through his P.D.S shop. on allegation, the Supply Inspector made enquiry and found the colour of the kerosene oil white. He had also taken the statements of a large number of villagers. The consumers have supported the petitioner's defence by stating that he has been property distributing the articles through his P.D.S shop. Only a handful of persons who are interested in getting the petitioner's license cancelled for grabbing the business/shop for themselves deliberately criticized the petitioner. No irregularity or illegality has been found on the part of the petitioner. 10. Mr. A.K. Mehta, learned J.C. to S.C.-II appearing on behalf of the respondent Nos. 2 & 3, reiterated the stand taken in the counter affidavit and submitted that there is no infirmity or illegality in the impugned orders. 11. After hearing learned Counsel for the parties and scrutinizing the facts and materials available on record, I find that kerosene oil allegedly seized from the petitioner's possession was not found to be of blue colour. The report of the Supply Inspector has been brought on record as Annexure-4, On perusal of the said report, it is evident that on surprise checking he had verified the stocks and found the stocks as well as the stock register in order. The colour of the seized kerosene oil was white and not blue which is supplied by the Government for distribution among the card holders. He concluded that there is no case of violation of any Order or provision under Section 7 of the Essential Commodities. Though he did not find any illegality or contravention of the Unification Order, he reported irregularity in supply alleging that allotted quantity was not being supplied to some of the consumers which is violation of the terms of the agreement and the license granted to the petitioner. On that ground he had recommended for suspension of the petitioner's license. The said report of the Supply Inspector is the basis of suspension and subsequent cancellation of the petitioner's license. 12. V hen no illegality constituting a case under Section 7 of the Essential Commodities Act has been found against the petitioner, the seized quantity of kerosene oil was not found to be supplied for distribution among the card holders, there was no valid ground for the licensing authority to suspend the petitioner's license and subsequently to cancel the same by the impugned orders. The licensing authority did not apply his mind and properly consider the said legal aspect and the report of the Supply Inspector which is an admitted document and the basis of the proceeding against the petitioner. The appellate authority also failed to consider the grounds taken by the petitioner properly. The appellate authority seems to have mechanically paraphrased the order passed by the licensing authority. 13. The impugned orders are wholly without any legal basis and perverse. The impugned order of the licensing authority dated 29.6.04 (Annexure-5) as well as that of the appellate authority dated 27.10.05 (Annexure-7) are thus vitiated and hereby quashed. The proceeding in which the said orders have been passed is itself without any legal foundation and the same also stands quashed. This writ petition is allowed. If the license of the petitioner is not otherwise inoperative, the same is restored. There is no order as to costs. Petition allowed.