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2014 DIGILAW 380 (PAT)

Shanti Devi v. State of Bihar

2014-03-26

RAVI RANJAN

body2014
ORDER I have heard learned counsel for the petitioner and the State. 2. Petitioner seeks quashing of the order dated 26.04.2010 passed by the District Magistrate, Bhagalpur in Supply Appeal Case No.26/09-10 as contained in Annexure-7 by which his Licence No.36 of 2000 granted for wholesale dealership of the Kerosene Oil has been cancelled. He also assails the order dated 30.03.2011 passed by the Commissioner, Bhagalpur Division, Bhagalpur in Supply Appeal No.10 of 2010-11 by which the order passed by the Collector has been upheld and appeal has been dismissed. 3. It is submitted on behalf of the petitioner that a vague show cause notice was issued on 06.08.2007 (Annexure-1) although the charges stand described but it was not clear from the show cause notice as to whether that was in contemplation of suspension of licence or for its cancellation. However, vide order dated 10th April, 2008, as contained in Annexure-3, his licence was suspended after consideration of his reply to the show cause notice and finding reply to be unsatisfactory. 4. The petitioner subsequently approached the authority concerned for revocation of suspension on the ground that the suspension had outlived its life of 90 days by filing Annexure-4 dated 4.12.2008. However, thereafter, an order dated 31.07.2009 was passed by the District Magistrate (Annexure-5) cancelling the licence of the petitioner. The aforesaid order was assailed by the petitioner before the Commissioner, Bhagalpur Division by preferring Misc. Appeal No.06 of 2009-10 which was disposed of vide Annexure-6 dated 27.08.2009 by remitting back the matter to the Collector for reconsideration and taking a final decision after considering the case of the petitioner. Thereafter, the impugned order as contained in Annexure-7 cancelling the licence of the petitioner was passed and, subsequently, the appellate order, as contained in Annexure-8, upholding such decision was also passed. 5. Learned counsel for the petitioner submits that the entire proceeding stands vitiated on several counts. One of the reasons would be that once a decision of punishment of suspension of licence was imposed by the authority concerned, there was no occasion for it to proceed further and fastened the petitioner with another punishment by cancelling the licence on same set of charges. It is next contended that the order of cancellation has been passed without issuance of any show cause notice for the same. It is next contended that the order of cancellation has been passed without issuance of any show cause notice for the same. Thus, on that ground also the order impugned would be in violation of the principle of natural justice as reasonable opportunity was never granted to the petitioner to present his case in a proceeding for cancellation of licence. Learned counsel submits that it is well settled that if any action or order of the authority is going to visit any civil consequence upon the licensee or the concerned person then issuance of a show cause notice to that effect would be mandatory and consideration of the grounds raised in the reply to the show cause notice would also be mandatorily required to be followed and reasons should also be recorded for holding the grounds raised to be unsustainable or not tenable. 6. Learned counsel places reliance in this regard upon a decision of Division Bench rendered in Umesh Chandra Dinesh Kumar Vs. The State of Bihar and others, 1991(1) BLJ 548. It is submitted that since no show cause notice for cancellation of licence was ever issued and upon the reply furnished by the petitioner to the show cause notice, as contained in Annexure-1, was already considered and, thereafter, a punishment of suspension of licence was imposed vide Annexure-3, the subsequent order of cancellation of licence vide Annexure-5 was passed without granting any reasonable opportunity. 7. On the aforesaid grounds having been raised on earlier occasion, this Court directed the District Magistrate, Bhagalpur to file counter affidavit on specific issue as to whether any show cause notice was issued to the petitioner in contemplation of a proceeding for cancellation of his licence. 8. A counter affidavit has been filed appending some notices. However, not a single show cause notice issued in contemplation of cancellation of licence of the petitioner after passing of the order of suspension on 09.04.2008 could be brought on record. Though it has not been stated in clear terms in the counter affidavit that no such show cause notice was ever issued but learned counsel appearing for the State has fairly submitted that it does not appear from the records and from the counter affidavit that any specific show cause notice for cancellation of licence or any notice after passing of the order of suspension dated 09.04.2008 was ever issued. 9. 9. That being the situation, this Court would have no hesitation in holding that the orders impugned are not sustainable in law. It is admitted position that a licence for dealership was issued in favour of the petitioner in terms of a provision contained in Bihar Trade Articles (Licences Unification) Order, 1984 (hereinafter referred to as “the Control Order”). The provision for suspension of cancellation of licence has been provided under Clause-11 of the Control Order. Clause-11(i) provides that, for the irregularities committed by the licensee or if he 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, his licence may be cancelled or suspended with regard to one or more trade articles. The aforesaid provision clearly lays down that there are two modes of punishment for such irregularity committed by the licensee one by suspending the licence and another by cancellation of licence. This issue is no longer res integra as this Court in Laxmi Rai Vs. The State of Bihar, 2013(4) PLJR, 251 has examined the scope and sweep of the aforesaid provision. At the same time, Clause-11(2) provides that 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. During the pendency of such proceedings his licence can be suspended for a period not exceeding 90 days without giving any opportunity to the licensee of stating his case. However, in the present case, a show cause notice was issued upon the petitioner vide Annexure-1 to explain as to why necessary action should not be taken against him for the charges mentioned therein and, after consideration of show cause notice, order of suspension was passed vide Annexure-3 that would definitely mean that after consideration of the case of the petitioner a decision for suspension of licence was taken. However, as per mandatory requirement, there was no further initiation of any proceeding of cancellation of licence as admittedly neither any show cause notice was issued nor was the petitioner granted any opportunity to make out his case. That will definitely give a fatal blow to the entire proceeding of cancellation. However, as per mandatory requirement, there was no further initiation of any proceeding of cancellation of licence as admittedly neither any show cause notice was issued nor was the petitioner granted any opportunity to make out his case. That will definitely give a fatal blow to the entire proceeding of cancellation. From the records, it does not appear that the order of suspension was passed in contemplation of any proceeding of cancellation as it was passed after issuance of show cause notice which was vague as it was not mentioned as to whether it is being issued for cancellation of licence or for its suspension but then the reply was considered and order of suspension was passed. 10. Thus, in the aforementioned facts and circumstances, this Court is left with no other option than to quash the impugned orders, as contained in Annexure-7, as well as the consequential order of appeal, as contained in Annexure-8, as it is also well settled that the apparent defect, if found in the original order passed by the Licensing Authority, that cannot be cured by the Appellate Authority. A reference in this regard is to be made for this Court in Umesh Chandra Dinesh Kumar (supra). 11. Accordingly, the impugned orders as contained in Annexures 7 and 8 are set aside. So far the order of suspension is concerned that was also bad on account of the fact that the show cause notice did not disclose anywhere that it was being issued in contemplation of a punishment of suspension or cancellation of licence. That apart, the licence has remained suspended for quite a long period also as the same was suspended vide Annexure-3 dated 10th April, 2008 itself. 12. Thus, in my considered opinion, the petitioner would now be entitled for resumption of supplies. 13. Accordingly, this writ application stands allowed. ?