Research › Search › Judgment

Jharkhand High Court · body

2017 DIGILAW 1985 (JHR)

Vinay Kumar v. State of Jharkhand

2017-11-18

RAJESH SHANKAR

body2017
ORDER : RAJESH SHANKAR, J. 1. The present writ petition has been filed for quashing the order dated 31.1.2017, passed by the Deputy Commissioner, Dumka in License Appeal No. 10/2016-17 affirming the order contained in memo No. 197/2016 dated 10.11.2016, passed by the Sub-Divisional Magistrate, Dumka, whereby the petitioner's license for Public Distribution Shop has been cancelled. The factual background of the case as stated in the writ petition is that the petitioner was running Public Distribution Shop in Village-Tulsi within the District of Dumka vide License No. 48/88. An FIR was lodged against the petitioner being Saraiyahat P.S. Case No. 100 of 2016 alleging blackmarketing of Kerosene Oil. Thereafter, the Sub-Divisional Officer, Dumka (respondent No. 4) issued letter to the Block Supply Officer, Dumka (respondent No. 5) vide Memo No. 367 dated 2.7.2016 and directed to transfer the foodgrains from the shop of the petitioner to the shop of one Ramdeo Baitha. Thereafter, vide letter No. 120 dated 27.7.2016, the respondent No. 5 informed the respondent No. 4 that the shop of the petitioner was found closed and as such the foodgrains could not transferred to the shop of Ramdeo Baitha. However, it is claimed by the petitioner that as per the order of the respondent No. 4, the foodgrains from the shop of the petitioner was transferred to the shop of Ramdeo Baitha on 14.8.2016. Subsequently, the respondent No. 4 vide order contained in Memo No. 524 dated 17.8.2016 suspended the licence of the petitioner and a show cause notice was issued to him to explain the allegation against him. An enquiry report dated 14.10.2016 was submitted by the Block Development Officer, Saraiyahat to the respondent No. 4 vide letter No. 1385 and on the basis of the enquiry report, the license of the PDS shop of the petitioner was cancelled vide Order No. 197 of 2016 as contained in Memo No. 717 dated 10.11.2016 issued by the respondent No. 4. The petitioner challenged the order of cancellation of his PDS licence before the Deputy Commissioner, Dumka (respondent No. 3) vide License Appeal No. 10/2016-17 but the same was also rejected vide order dated 31.1.2017. In the meantime, the Criminal Case instituted against the petitioner vide Saraiyahat P.S. Case No. 100 of 2016 ended with submission of Final Form due to lack of evidence. 2. In the meantime, the Criminal Case instituted against the petitioner vide Saraiyahat P.S. Case No. 100 of 2016 ended with submission of Final Form due to lack of evidence. 2. The learned counsel appearing on behalf of the petitioner submits that the impugned order of cancellation of PDS licence of the petitioner has been passed in violation of the principles of natural justice. It is further submitted that the criminal case instituted against the petitioner ended with submission of final form due to lack of evidence. It is also submitted that on perusal of the enquiry report, it would be apparent that no card holder has made any complaint against the petitioner, rather several card holders have given joint application on 21.7.2016 to the Block Development Officer, Saraiyahat stating about the innocence of the petitioner. 3. Per contra, the learned counsel appearing on behalf of the respondents submits that the respondent No. 5 inquired into the allegation against the petitioner about the alleged blackmarketing of the foodgrains and submitted the enquiry report to the respondent No. 4. The respondent No. 4 asked show cause from the petitioner and also directed him to transfer the foodgrains to another PDS Shop, but he failed to comply the direction and also did not file reply to the show cause and as such the license of the petitioner has been cancelled due to his involvement in blackmarketing and for disobedience of Government orders. It is further submitted that a criminal case is also pending against the petitioner at Dumka for the involvement in black marketing of Kerosene oil. 4. Heard the learned counsel for the parties and perused the materials available on record. It appears that the licence of the petitioner was suspended on the allegation of blackmarketing and subsequently an enquiry was conducted by the respondent No. 5 and on the basis of the enquiry report, the license of the PDS shop of the petitioner has been cancelled vide Order No. 197 of 2016, as contained in Memo No. 717 dated 10.11.2016, issued by the respondent No. 4. The appeal filed by the petitioner being License Appeal No. 10/2016-17 was also dismissed by the Deputy Commissioner, Dumka vide order dated 31.1.2017. The appeal filed by the petitioner being License Appeal No. 10/2016-17 was also dismissed by the Deputy Commissioner, Dumka vide order dated 31.1.2017. In the meantime a criminal case was also lodged against the petitioner being Saraiyahat P.S. Case No. 100 of 2016 in which Final Form has been submitted by the police due to lack of evidence. The learned counsel for the petitioner has assiduously argued that the impugned order of cancellation of licence has been passed in violation of the principles of natural justice, as no notice was served to him before passing of the impugned order. However, the learned counsel for the respondents has denied the said allegation and submitted that all the efforts were taken to serve the notice, however, the petitioner was not found in the house and his wife also refused to receive the notice and finally the notice was pasted at the house of the petitioner. It has been further submitted that in spite of the service of notice, the petitioner did not participate in the proceeding as such there is no violation of principles of natural justice. 5. On perusal of Order 11 of Bihar Trade Articles (Licences Unification) Order, 1984 it would appear that no order of cancellation of licence can be passed unless the licensee has been given reasonable opportunity of hearing against the proposed cancellation. In spite of the strong denial of service of notice by the petitioner, the respondents have not brought on record any proof with regard to proper service of notice to the petitioner. Once the proper service of notice has been denied by the petitioner, the onus shifts to the respondents to prove by cogent material that the notice has been properly served which they failed to do. Substituted service of notice by affixing it at the house of the petitioner should have been resorted to only after making diligent attempts to serve the notice in usual manner. In the present case, the respondents have failed to bring on record any material to suggest that the authorities have resorted to the mode of affixing the notice at the house after making all diligent attempts to serve it to the petitioner by usual mode. In the present case, the respondents have failed to bring on record any material to suggest that the authorities have resorted to the mode of affixing the notice at the house after making all diligent attempts to serve it to the petitioner by usual mode. In this context, it may be observed that the temporary absence of a party from the place of residence/business cannot be taken as an excuse to serve the notice by any other mode. The principle of audi alteram partem is the basic concept of the principles of natural justice. In the field of administrative action, this principle has been applied to ensure fair play and justice to the affected persons and to improve administrative efficiency, expediency and to mete out justice. The procedure adopted must be just and fair. The expression "audi alteram partem" simply implies that a person must be heard/given an opportunity to defend himself. This principle is a sine qua non in decision making process. The principle of fair hearing is a pivotal concept and hence covers every stage through which an administrative adjudication passes, starting from issuance of notice to final determination. 6. However, in the factual context of the present case, though the petitioner has contended that in the alleged criminal case, the police has submitted the Final Form in his favour due to lack of evidence, yet there is no document on record to suggest as to whether the Final Form has been accepted by the concerned court or not. On the other hand, the respondents have contended that the criminal case is still pending against the petitioner. Under the said circumstance, this Court finds it appropriate to remand the matter to the respondent No. 4 for deciding it afresh after providing the petitioner due opportunity of hearing. 7. In view of the aforesaid discussion, the order dated 31.1.2017 passed by the Deputy Commissioner, Dumka (respondent No. 3) in License Appeal No. 10/2016-17 as also the order contained in memo No. 197/2016 dated 10.11.2016 passed by the Sub-Divisional Magistrate, Dumka (respondent No. 4) are quashed and set aside having been passed in violation of principles of natural justice. The matter is remanded to the respondent No. 4 to pass fresh order in this regard after affording due opportunity of hearing to the petitioner. The matter is remanded to the respondent No. 4 to pass fresh order in this regard after affording due opportunity of hearing to the petitioner. It is made clear that observations made in the present order would not be prejudice the case of either party and the impugned orders have been quashed primarily on the point of violation of the principles of natural justice. The writ petition is accordingly disposed of with aforesaid observation and direction.