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2018 DIGILAW 2586 (JHR)

Punam Devi v. State of Jharkhand

2018-11-28

RAJESH SHANKAR

body2018
ORDER : 1. The present writ petition has been filed for quashing the order dated 15.03.2016 passed in Misc. Case No. 04/15 as communicated to the petitioner vide memo no. 263 dated 15.03.2016 issued by the Special Officer, Rationing, Jamshedpur (the respondent no. 3) whereby the licence no. 02/2010 issued to Jai Ambey Swayam Sahayta Mahila Samuh (in short to be referred as “Samiti”) for running a fair price shop has been cancelled. 2. The factual matrix of the case is that a resolution was issued by the Government of Jharkhand through Department of Food, Public Distribution and Consumer Affairs as contained in letter dated 06.08.2009 resolving that in future, the licence under the Public Distribution System shall be issued to self-help groups comprising of female members under the category of B.P.L. Jai Ambey Swayam Sahayata Mahila Samuh was constituted by the ladies of the locality as self-help group in which the petitioner namely Punam Devi and one Santoshi Devi were elected as the President and the Secretary respectively. An application for grant of license to run a shop under the Public Distribution Scheme was made on 10.08.2009 by the said Samiti whereafter, licence no. 2/2010 was granted to it. In the meantime, Santoshi Devi was appointed as Anganbari Sevika vide Memo no. 462 dated 01.09.2009. Thereafter, a meeting was convened by the Samiti on 15.05.2010 and it was resolved that Santoshi Devi should be replaced by one Santari Bai as the Secretary of the Samiti. Pursuant to the said resolution, an application was forwarded to the respondent no. 3 through the Marketing Officer, Jugsalai region on 26.05.2010 with a copy of the minutes dated 15.05.2010. Thereafter, one Subhash Kumar Mittal made a complaint before the Deputy Commissioner, East Singhbhum, Jamshedpur- the respondent no. 2 against the Samiti in pursuance of which a show cause notice was issued as contained in memo no. 129 dated 13.2.2016 by the respondent no. 3 alleging that a joint inspection team had reported that Santari Bai is the Secretary of the said Samiti, yet the name of Santoshi Devi appears as Secretary in the licence and also that the name of Santari Bai has not been mentioned in the licence amongst 13 members of the Samiti. It was further reported that Santoshi Devi is also Anganbari Sevika and as such, she cannot perform the work at two places. It was further reported that Santoshi Devi is also Anganbari Sevika and as such, she cannot perform the work at two places. A show cause notice was thus issued to the said Samiti. The petitioner replied the show cause notice denying all the allegations however, the respondent no. 3 cancelled the PDS license of the Samiti and the said order was communicated to the petitioner vide memo no. 263 dated 15.03.2016. 3. The learned counsel for the petitioner submits that a PDS license cannot be cancelled in absence of any violation of terms and conditions of the licence. Neither the show cause notice nor the impugned order cancelling the PDS licence of the Samiti mentions as to which condition of the licence has been violated by the Samiti. There is also no violation of the provisions of the Bihar (now Jharkhand) Trade Article (Unification of Licence) Order, 1984 (in short “the Order, 1984) as the Order, 1984 does not contain any provision that the Secretary of the licensee “self-help group” has to be elected amongst its members and thus the impugned order cancelling the PDS license of the Samiti is without jurisdiction. Though the information was given to the respondent no. 3 long back on 26.05.2010 regarding change of the Secretary of the Samiti, the respondent no. 3 did not take any action on the said application to substitute the name of Santoshi Devi in licence and as such the Samiti cannot be made liable to suffer due to inaction on the part of the respondent no. 3. It is also submitted that the impugned order does not disclose as to what is the procedure for substituting the name of the Secretary of self-help group. Since the PDS licence stood in the name of the Samiti, the respondent no. 3 should have taken prompt action on the said application of the Samiti. 4. Per contra, the learned counsel for the respondents submits that on the complaint of one Subhash Kumar Mittal, an enquiry team was constituted by the Deputy Commissioner, East Singhbhum, Jamshedpur under the supervision of the respondent no. 3. In course of said inquiry it was found that the PDS shop of the Samiti and Anganbari Centre were being run in the house of one Suresh Kumar Nishad. 3. In course of said inquiry it was found that the PDS shop of the Samiti and Anganbari Centre were being run in the house of one Suresh Kumar Nishad. It was also found that the name of Santari Bai did not find place in the License Register amongst 13 female members. It also transpired in the inquiry that Smt. Santoshi Devi was also working as Anganbari Sawika. On the basis of the enquiry report, a show cause notice was issued to the Samiti and thereafter on consideration of the reply, the licence of the Samiti was cancelled. It is also submitted that before passing the impugned order, the petitioner was given appropriate opportunity of hearing to meet the allegation contained in the complaint. In view of the said facts, the petitioner is not entitled to any relief. 5. Heard learned counsel for the parties and perused the materials available on record. It appears that one of the grounds for cancellation of PDS licence of the Samiti is that its Secretary namely Santoshi Devi was found working at two places simultaneously. The contention of the petitioner is that initially Santoshi Devi was elected as Secretary of the Samiti, however after she was appointed as Anganbari Sevika, she was replaced by Santari Bai as Secretary of the Samiti through resolution dated 15.05.2010 and information to that effect was also given to the respondent no. 3 on 26.05.2010 through the Marketing Officer, Jugsalai Region. In support of the said contention, the petitioner has brought on record a copy of the application dated 26.05.2010 written to the respondent no. 3 alongwith minutes of the meeting of the Samiti dated 15.05.2010. The respondents in their counter affidavit have not controverted the receipt of the said application of the petitioner, however they have contended that due procedure for changing the Secretary of the Samiti has not been followed. 6. The Hon’ble Supreme court in the case of Murarilal Jhunjhunwala Vs. State of Bihar and Others reported in AIR 1991 SC 515 , has held as under:- “5. Technically, the authorities may be justified in prosecuting the appellant for carrying on the business without obtaining the licence. But the facts of the case reveal that the appellant is not to be blamed. If there is anybody to be blamed in this case it is only the Licensing Authority who has failed to perform its statutory duties. Technically, the authorities may be justified in prosecuting the appellant for carrying on the business without obtaining the licence. But the facts of the case reveal that the appellant is not to be blamed. If there is anybody to be blamed in this case it is only the Licensing Authority who has failed to perform its statutory duties. The appellant has done all that he could do under the law. He has not been told at any time that he is required to do anything more than what he has already done. For successive four years the Licensing Authority went on accepting the application for licence with the necessary licence fees, and at no time it denied the claims of the appellant. Its silence seems to demonstrate the total lack of awareness to the rights of the appellant. To cover up its own inaction and lethargic attitude, it seems to have directed the prosecution of the appellant. The attitude of the Licensing Authority is beyond our compensation. It is arbitrary on the fact of it and unjustified on every aspect of it. We fail to understand why the appellant should prosecuted when he on his part has done everything for obtaining the Licence. The appellant was legitimately entitled to the licence which has been unreasonably withheld from him. It would be indeed wrong on the part of the Licensing Authority to prosecute the appellant.” 7. In the factual matrix of the present case, even if it is assumed that the procedure was not followed by the Samiti in changing its Secretary, the respondent no. 3 was not diligent enough either to inform the said fact to the Samiti or to reject the said application of the Samiti in time, rather the said application was kept pending over a period of time and in the meantime, the licnece of the Samiti was also renewed. 8. Otherwise also, the specific contention of the petitioner is that the respondents have not disclosed either in show cause notice or in the impugned order as to what should be correct procedure for replacement of the Secretary of the said Samiti. The respondents have also not disclosed any such procedure for change of the name of the Secretary of the Samiti in their counter affidavit. The respondents have also not disclosed any such procedure for change of the name of the Secretary of the Samiti in their counter affidavit. Thus on the facts of the case, it appears that Santoshi Devi was not the Secretary at the relevant point of time and it is only the respondent no. 3 who can be said to be responsible for not replacing the name of the new Secretary in place of the earlier Secretary i.e. Santoshi Devi. 9. The other ground for cancellation of the license of the Samiti is that it violated the terms and conditions of the license. However neither the show cause notice nor the impugned order cancelling the PDS licence of the Samiti discloses any such violation. 10. On perusal of Clause 11(1) of the Order, 1984, it would appear that the PDS licence of any person can be cancelled if he contravenes any of the terms and conditions of the same. However in the present case, the respondent no.3 without reaching a conclusion as to how the Samiti has been found contravening the terms and conditions of the licence, has passed the order cancelling the PDS licence of the Samiti and as such, on this score only, the impugned order cannot be sustained in law. 11. In view of the aforesaid discussion, the impugned order dated 15.03.2016 passed in Misc. Case No. 4/15 is hereby quashed and set aside. 12. The writ petition is accordingly allowed.