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2018 DIGILAW 1319 (JHR)

Md. Matin v. State of Jharkhand

2018-06-26

RAJESH SHANKAR

body2018
ORDER : 1. The present writ petition has been filed for quashing the order, contained in Memo No.188 dated 18.5.2016 passed by the Sub Divisional Officer, Sadar, Ranchi (respondent no.2), whereby Retail Trade License No.05/05 granted to the petitioner for running of fair price shop under the provisions of Bihar Trade Articles (Licenses Unification) Order, 1981 (hereinafter referred as ‘Unification Order’) has been cancelled. 2. The factual background of the case, as stated in the writ petition, is that the petitioner was granted a retail license of food grains, sugar, edible oil, kerosene oil and controlled cloths in the year 2005 under the provisions of Unification Order. A show cause notice was served upon the petitioner vide Memo no.703 dated 02.04.2016 alleging inter alia that on 02.04.2016, between 12:00 noon to 2:00 pm, the inspection of six fair price shop dealers including the petitioner’s shop was made and were found closed. Consequently, licenses of these shop dealers were suspended and they were directed to submit their explanation before the respondent no.2. The petitioner submitted his reply on 18.04.2016 stating that at the relevant point of time he had gone to visit a doctor for medical check-up of his wife. In support of the said contention, the petitioner enclosed the doctor’s prescription and cash memo showing purchase of medicines. In spite of the said fact, the petitioner received the impugned order, contained in Memo no.188 dated 18.05.2016 passed by the respondent no. 2, cancelling his license of fair price shop, which gives rise to the filing of the present writ petition. 3. The learned counsel appearing on behalf of the petitioner submits that on perusal of the impugned order of cancellation of licence of the petitioner, it would be evident that the same has been passed on the basis of a report submitted by the Block Development Officer, Chanho, however, no such report was served upon the petitioner to enable him to give effective reply to the allegation. Thus, the impugned order suffers from the violation of the principles of natural justice. It is also submitted that in view of Clause 11 of the Unification Order, a PDS license can be cancelled only on violation of the terms and conditions of the license, however, no such violation has been recorded by the respondent no.2 while passing the impugned order. 4. It is also submitted that in view of Clause 11 of the Unification Order, a PDS license can be cancelled only on violation of the terms and conditions of the license, however, no such violation has been recorded by the respondent no.2 while passing the impugned order. 4. The learned counsel for the petitioner further submits that Clause 30 of the Unification Order empowers the authorities by whom search and seizure can be made and on perusal thereof it would appear that the Block Co-operative Extension Officer, Assistant Engineer and Jan Sewak are not authorized to make any search, seizure and inspection and even for the examination of Books of Accounts i.e Stock Register, Cash memo etc. It is also submitted that regular inspections were carried out by the State authorities. Moreover, the members of Nigrani Committee also used to keep watch on the function of the dealers but no complaint was ever made against the petitioner. 5. Per contra, the learned counsel appearing on behalf of the respondents submits that on receipt of the complaint against the petitioner, a team was constituted to inquire into the matter. The said enquiry team inspected the shop of the PDS dealer on 09.04.2016 and found the same closed. On enquiry from the beneficiaries, it was disclosed that the petitioner-dealer had distributed food grains to them less than the prescribed quantity. It is also submitted that on enquiry of the stock register of kerosene oil, several irregularities were found in lifting and distribution of kerosene oil. On earlier two occasions also, the shop of the petitioner was found closed during inspection and to that effect, action was taken against him. This is for the third time, the shop of the petitioner was found closed during inspection and, thus, his license was first suspended and a show cause notice was issued to him. Thereafter having found the reply of the petitioner unsatisfactory, the impugned order was passed cancelling his PDS licence. It is also submitted that the license of the petitioner was cancelled by the respondent no.2, who was the competent authority to pass the order of cancellation at the relevant time. At present, in view of the Notification no.300 dated 19.01.2017, the District Supply Officer, Ranchi has been authorized to function as the licensing authority. It is also submitted that the license of the petitioner was cancelled by the respondent no.2, who was the competent authority to pass the order of cancellation at the relevant time. At present, in view of the Notification no.300 dated 19.01.2017, the District Supply Officer, Ranchi has been authorized to function as the licensing authority. It is further submitted that the impugned order has been passed after affording due opportunity of hearing to the petitioner and also taking into consideration the reply as well as the past conduct of the petitioner. 6. Heard learned counsel appearing on behalf of the parties and perused the materials available on record. The petitioner has challenged the order of cancellation of his PDS shop license mainly on the ground that the same has been passed in violation of the principles of natural justice as no opportunity of hearing was given to him. On perusal of Order 11 of the Unification Order, it appears that no order of cancellation of licence can be passed unless the licensee is given reasonable opportunity of hearing against the proposed cancellation. The contention of the respondents is that the PDS shop of the petitioner was inspected on 09.04.2016 and was found closed. Thereafter, a show cause notice was issued to the petitioner on 02.04.2016. 7. On perusal of the order dated 2.4.2016, which is in the form of notice, it transpires that altogether six PDS dealers including the petitioner were intimated that during inspection, their shops were found closed due to which their licenses have been put under suspension. They were further directed to submit their explanation. In the said order, it was also mentioned that a three member enquiry committee has been constituted to enquire into the allegations levelled against them. The petitioner submitted his reply disclosing the reason for closer of his shop at the relevant point of time. The respondent no.2 while passing the impugned order of cancellation has strongly relied upon the enquiry report submitted by the three member committee wherein they found several irregularities in lifting and distribution of food grains and kerosene oil. The contention of the petitioner is that the enquiry report was not supplied to him enabling him to give proper reply. The said contention has not been denied by the respondents in their counter affidavit. 8. The contention of the petitioner is that the enquiry report was not supplied to him enabling him to give proper reply. The said contention has not been denied by the respondents in their counter affidavit. 8. It is well settled law that any administrative/quasi-judicial authorities while taking action adversely affecting the right of a person, should take the said action judiciously after affording proper opportunity of hearing to the affected party. The procedure adopted by the authorities must also be fair and transparent. 9. The Hon'ble Supreme Court in the case of Kothari Filaments Vs. Commissioner of Customs, reported in (2009) 2 SCC 192 , has held as under: “15. The Act does not prohibit application of the principles of natural justice. The Commissioner of Customs either could not have passed the order on the basis of the materials which were known only to them, copies whereof were not supplied or inspection thereto had not been given. He, thus, could not have adverted to the report of the overseas enquiries. A person charged with misdeclaration is entitled to know the ground on the basis whereof he would be penalised. He may have an answer to the charges or may not have. But there cannot be any doubt whatsoever that in law he is entitled to a proper hearing which would include supply of the documents. Only on knowing the contents of the documents, he could furnish an effective reply........” 10. The Hon'ble Supreme Court further in the case of Sahara India (Firm) (1) Vs. CIT, reported in (2008) 14 SCC 151 , has held as under: “18. Recently, in Canara Bank v. V.K. Awasthy the concept, scope, history of development and significance of principles of natural justice have been discussed in extenso, with reference to earlier cases on the subject. Inter alia, observing that the principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights, the Court said: (SCC pp. 331-32, para 14) “14. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. 331-32, para 14) “14. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression ‘civil consequences’ encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.” 19. Thus, it is trite that unless a statutory provision either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences for the party affected. The principle will hold good irrespective of whether the power conferred on a statutory body or tribunal is administrative or quasi-judicial.” 11. This Court in the cases of Suresh Kumar Sao Vs. The State of Jharkhand & Ors., reported in 2013 1 JBCJ 460 ; Bidya Devi Vs. The State of Jharkhand, Secretary, Food and Civil Supplies Department & Ors., reported in 2015 4 JLJR 685 ; Deepak Kujur Vs. State of Jharkhand & Ors., reported in 2018(1) JBCJ 609 (HC); and Santosh Thakur Vs. State of Jharkhand & Ors., reported in 2018(2) JLJR 20, has quashed the impugned orders cancelling the P.D.S licenses mainly considering the fact that the enquiry reports were not supplied to the P.D.S dealers before passing orders of cancellation of licenses issued to them. 12. In view of the discussions made above, the impugned order contained in Memo No.188 dated 18.5.2016 (Annexure-3) cannot be sustained in law and the same is hereby quashed. 12. In view of the discussions made above, the impugned order contained in Memo No.188 dated 18.5.2016 (Annexure-3) cannot be sustained in law and the same is hereby quashed. The present licensing authority is, however, at liberty to issue a fresh show cause notice to the petitioner and to pass a reasoned order in accordance with law after providing the copy of the enquiry report and affording due opportunity of hearing to the petitioner. 13. The writ petition is, accordingly, disposed of.