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2013 DIGILAW 267 (PAT)

Anita Paswan v. State of Bihar

2013-02-26

RAVI RANJAN

body2013
ORDER Learned counsel is permitted to make necessary correction in paragraph no. 1 of the interlocutory application. 2. I.A. No. 1348 of 2013 has been filed on behalf of the respondent no. 3 for exempting the respondent from payment of cost imposed vide order dated 6.2.2013. It is submitted that the statement of facts was received in the office of the learned Standing Counsel XVI on 18.2.2013 itself but the affidavit could not be drafted on 18.2.2013. The counter affidavit was prepared and affidavit was sworn on 19.2.2013 itself but could be filed on 20.2.2013 after a delay of about a day. Unconditional apology has been tendered for the delay. 3. In the facts and circumstances this interlocutory application is allowed and the respondents are exempted from payment of cost in compliance of the direction contained in order dated 6.2.2013. 4. Now I proceed to consider the C.W.J.C. No. 14881 of 2011 on its own merit. 5. Heard learned counsel for the petitioner and the State. 6. Through this writ application the petitioner seeks quashing of order dated 14.1.2011 as contained in Annexure 1 series by which the licensing authority has canceled the licence no. 126/2007 granted her for running a public distribution system shop. 7. It is submitted on behalf of the petitioner that vide notice dated 12.7.2010, contained in Annexure 1 series, petitioner was directed to show cause as to why her licence should not be suspended. Thereafter, vide order dated 31.7.2010 her supplies were discontinued and her licence was tagged with other licensee without passing any formal order of suspension. However, it is contended that in view thereof the petitioner’s licence was suspended. 8. Learned counsel raises question that in the absence of any show cause notice for initiation of a proceeding for proposed cancellation of licence of the petitioner, the impugned order of cancellation ought not have been passed by the licensing authority. It is next contended that if it is deemed that the petitioner’s licence was suspended after issuance of show cause notice dated 12.7.2010 issued in contemplation of punishment of suspension then the subsequent imposition of another punishment by cancelling the licence on same charges was bad as per the law laid down by a Division Bench of this Court in its decision dated 4.2.2013 passed in L.P.A. No.15 of 2011 (Shiv Chandra Jha vs. Harideo Jha & Ors.). Another issue is raised that from bare perusal of the impugned order of cancellation it would appear that the same has been passed without recording any reason and consideration of even the reply to the show cause notice dated 12.7.2010 that was issued for proposed suspension of the license. 9. A counter affidavit has been filed on behalf of the State. Learned counsel has produced xerox copy of a notice dated 31.7.2010 which was issued in contemplation of a proceeding of cancellation of license, let it be kept in record. 10. However, I find force in the submissions raised on behalf of the petitioner. Once a show cause notice dated 12.7.2010 was issued for proposed punishment of suspension and after that the supplies to the petitioner were withheld and her licence was tagged with another licensee, that would, in my considered opinion would either amount to be deemed suspension of the licence of the petitioner or the action would be in violation of Clause 7(vi) of the Public Distribution System (Control) Order, 2001. The provision contained in Clause 7(ii) of the Control Order, 2001, as was existing prior to 2011 amendment and in force at the time of passing of the order, empowers the authority to either suspend or cancel the licence of the petitioner by a written order. It is engrafted in Clause 7(iv) that even for suspension of licence it would be necessary a show cause notice would have to be given. Clause 7(v) provides that the suspension of licence would be for a maximum period of ninety days. According to Clause 7(vi), allocation to FPS dealers shall not be discontinued under any circumstances except suspension of licence or cancellation of the same. In such case, Clause 7(vii) provides that in case of suspension or cancellation of license the consumer should be tagged to the nearest FPS shops by the concerned Block Supply Officer. Therefore, in view of Clause 7(vii) the consumer of the licensee – petitioner could not have been tagged with other licensee without suspension or cancellation of her licence. 11. The order of cancellation also stands vitiated on account of non consideration of the grounds raised in the show cause submitted by the petitioner, as contained in Annexure 1 series, with reference to both the notices dated 12.7.2010 and 31.7.2010. 11. The order of cancellation also stands vitiated on account of non consideration of the grounds raised in the show cause submitted by the petitioner, as contained in Annexure 1 series, with reference to both the notices dated 12.7.2010 and 31.7.2010. It is well settled that if some order is to be passed by the authority concerned visiting civil consequence upon a person, a show cause notice and consideration of the cause shown would be must and if that is not found satisfactory then assigning reasons for rejection of the grounds raised in the reply would also be mandatory. In the absence of the same the order would be deemed to have been passed in a mechanical manner without application of mind. Reference in this regard is made to a decision rendered by a Division Bench of this Court in M/s Umesh Chandra Kumar vs. The State of Bihar and others [1999(1) B.L.J., 548]. 12. As a result, it is held that the order impugned dated 14.1.2011 as contained in Annexure 1 series is not sustainable in the eye of law and is, accordingly, quashed and set aside. 13. Before parting with the issue I must indicate that it has already been discussed above that though a notice for proposed suspension of licence was issued but without passing any order of suspension supplies of the petitioner has been withheld after issuance of the aforesaid notice and her license was tagged with another licensee. I have already held that the action was in teeth of the provision contained in Clause 7(vii) of the Control Order 2001. The subsequent order of cancellation has already been set aside, thus, in my opinion, due to illegality committed by the licensing authority the petitioner’s supplies have remained disrupted since long and in my considered opinion the same is required to be resumed immediately if no case is pending against the petitioner under Section 7 of the Essential Commodities Act till date. 14. However, it is made clear that this order would not come in the way of the licensing authority for initiation of proceeding on a separate cause of action, if any. 15. Accordingly, this writ application stands allowed.