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2020 DIGILAW 617 (JHR)

Biren Chandra Das v. State of Jharkhand

2020-06-19

RAJESH SHANKAR

body2020
JUDGMENT : The present writ petition is taken up today through Video conferencing. The present writ petition has been preferred for quashing the order contained in memo no. 07/Aa. dated 16.01.2017 (Annexure-5 to the writ petition) passed by the respondent no. 2 – Sub-Divisional Officer, Chas cancelling the retail trade licence of the petitioner and also for quashing of the order dated 14.05.2018 passed by the respondent no. 3 – the Deputy Commissioner-cum-District Magistrate, Bokaro in Misc. Case No. 36 of 2017-18, whereby the appeal of the petitioner has been dismissed. 2. The factual background of the case as stated in the writ petition is that the petitioner was granted retail licence no. 13 of 1994 for running a fair price shop by the respondent no. 2 under the provisions of the Bihar Trade Articles (Licenses Unification) Order, 1984. A show cause notice was issued to the petitioner vide memo no. 366/Aa. dated 08.11.2016 from the respondent no. 2 alleging therein that a complaint dated 02.11.2016 had been made against him by one Urmila Devi and other 60 card holders making allegation of distributing less quantity of food grains and also for giving threatening to assault by abusing them, when they demanded food grains as per law. The petitioner submitted reply to the said show cause notice denying the allegations against him, however, the respondent no. 2 again issued notice as contained in memo no. 403/Aa. dated 19.12.2016 asking the petitioner to submit clarification on the same allegation as contained in the previous notice. After receiving the second show cause notice, the petitioner submitted reply to the respondent no. 2 on 31.12.2016, however, vide impugned order as contained in memo no. 07/Aa. dated 16.01.2017 passed by the respondent no. 2, the petitioner’s licence no. 13/1994 was cancelled with immediate effect. The petitioner filed appeal before the respondent no. 3 vide Misc. Case No. 36 of 2017-18 which was also dismissed on 14.05.2018. Hence, the present writ petition. 3. The learned counsel for the petitioner submits that the impugned order of cancellation of his trade licence has been passed in violation of the principles of natural justice. The petitioner filed appeal before the respondent no. 3 vide Misc. Case No. 36 of 2017-18 which was also dismissed on 14.05.2018. Hence, the present writ petition. 3. The learned counsel for the petitioner submits that the impugned order of cancellation of his trade licence has been passed in violation of the principles of natural justice. It is also submitted that the show cause notice issued to the petitioner did not spell out as to which order/ terms and conditions of the licence had been violated and, therefore, initiation of proceeding against the petitioner and the cancellation of licence were without jurisdiction. It is further submitted that in respect to the alleged violation under various provisions of the National Food Security Act, 2013 as well as the Essential Commodities Act, 1955 which has been noted in the impugned order dated 16.01.2017, the petitioner was never asked to show cause as would be evident from the notices dated 08.11.2016 and 19.12.2016. The respondent no. 2 has not given any finding as to under which particular term and condition of the licence and/or under which clause of the Unification Order, 1984/the Public Distribution System (Control) Order, 2001 has been violated. The respondent no. 2 has not taken into consideration the replies given by the petitioner in his defence. Moreover, the appellate court has also not applied its judicial mind in passing the impugned order dated 14.05.2018 and, therefore, both the impugned orders are liable to be set aside. 4. The learned counsel for the respondents submits that the petitioner filed two replies separately to the show cause notices dated 08.11.2016 and 19.12.2016, however, without any reliable evidence to meet the allegation levelled against him and as such, there was no need to provide personal hearing by the licence issuing authority. It is also submitted that the petitioner had violated various provisions of the National Food Security Act, 2013 as well as the Essential Commodities Act, 1955. It is further submitted that the impugned order of cancellation of trade licence has been passed on the complaint lodged by the cardholders against the petitioner. 5. Heard the learned counsel for the parties and perused the materials available on record. 6. It appears that on the basis of a complaint lodged by one Urmila Devi and other 60 cardholders, two show cause notices were issued to the petitioner by the respondent no. 5. Heard the learned counsel for the parties and perused the materials available on record. 6. It appears that on the basis of a complaint lodged by one Urmila Devi and other 60 cardholders, two show cause notices were issued to the petitioner by the respondent no. 2 with the following allegations: (a) The Antyoday card holders were getting only 15-20 kg of food grains, though they are entitled to 35 kg. (b) The card holders were abused and threatened to be assaulted, when they demanded food grains as per law. (c) The 25% card holders are not getting the food supplies. (d) The petitioner is violating the several conditions of the license and is running the shop as per his whims. 7. Though, the petitioner replied the show cause notices and denied the allegations levelled against him, however, the respondent no. 2 vide impugned order dated 16.01.2017 cancelled the PDS licence No. 13/1994 granted to the petitioner. 8. On bare perusal of the impugned order dated 16.1.2017, it appears that while passing the said order, the respondent no. 2 has taken into consideration the report of the Block Supply Officer dated 09.01.2017, wherein it was alleged that altogether nine ration cards had been issued to the family members of the petitioner which was in violation of the rule. It has further been mentioned in the impugned order that a direction was issued by the Public Communication Center (Mukhyamantri Jan Samvad Kendra) to cancel the trade licence of the petitioner. It is thus evident that the respondent no. 2 while cancelling the licence of the petitioner was influenced with the report of the Block Supply Officer and has taken altogether different allegations into consideration from those reflected in the show cause notices. The petitioner was never served any show cause notice for the allegation of having several ration cards in the name of his family members. 9. In the case of “SACI Allied Products Ltd. U.P. Vs. Commissioner for Central Excise” reported in (2005) 7 SCC 159 it is held as under:- 16. The petitioner was never served any show cause notice for the allegation of having several ration cards in the name of his family members. 9. In the case of “SACI Allied Products Ltd. U.P. Vs. Commissioner for Central Excise” reported in (2005) 7 SCC 159 it is held as under:- 16. Thus according to the Appellate Tribunal, since the dealers in Uttar Pradesh who purchased the goods from Syndet, and independent dealers in other parts of the country to whom the appellants directly sold the goods are different class of buyers, the appellants' price to the independent dealers cannot be taken as the basis for assessing the appellants' sales to Syndet in Uttar Pradesh. This finding of the Appellate Tribunal is based on first proviso to Section 4(1)(a) of the Act. While the show-cause notice and the order of the Collector proceeded on the basis of the invocation of third proviso to Section 4(1)(a) of the Act, the Appellate Tribunal for the first time in the impugned order has sustained the proceedings on the basis of first proviso to Section 4(1)(a) of the Act. It was argued that the first proviso to Section 4(1)(a) of the Act was never invoked by the Department either in the show-cause notice or in the impugned order and it was for the first time that the Appellate Tribunal in the impugned order has sought to sustain the impugned order by invoking the first proviso to Section 4(1)(a) of the Act. It is thus seen that the Tribunal has gone totally beyond the show-cause notice and the order of the Collector, which is impermissible. The Appellate Tribunal cannot sustain the case of the Revenue against the appellants on a ground not raised by the Revenue either in the show-cause notice or in the order. 10. In the case of “Godrej Industries Limited & Anr. Vs. Commissioner of Central Excise, Mumbai & Ors.” reported in (2008) 17 SCC 471, the Hon’ble Supreme Court has held as under: “3. The Tribunal in its impugned order has exceeded its jurisdiction by recording a finding to the effect that Godrej Soap Ltd. (GSL) is a “related person” vis-à-vis Procter & Gamble Godrej Ltd. (PGG) which is beyond the scope of the show-cause notice. The Tribunal in its impugned order has exceeded its jurisdiction by recording a finding to the effect that Godrej Soap Ltd. (GSL) is a “related person” vis-à-vis Procter & Gamble Godrej Ltd. (PGG) which is beyond the scope of the show-cause notice. We ourselves have gone through the show-cause notice and we are satisfied that the finding recorded by the Tribunal insofar as it relates to a “related person” is beyond the scope of show-cause notice and therefore, the same cannot be sustained and is accordingly set aside.” 11. Thus, the impugned order dated 16.01.2017 is liable to be set aside on the sole ground that the show cause notices issued to the petitioner were not containing the ground on which the order of cancellation of licence has been passed by the respondent no. 2, which is in utter violation of the principles of natural justice. Moreover, the learned counsel appearing on behalf of the respondents has failed to show any specific rule/order which provides for cancellation of licence on the ground of possessing multiple ration cards by the family members of the licensee. So far as the allegations levelled against the petitioner in the show cause notices are concerned, the replies submitted by the petitioner were not at all considered by the respondent no. 2. 12. Mr. Atanu Banerjee, the learned Sr. SC-III appearing on behalf of the respondents has tried to justify the impugned order of cancellation of the petitioner’s licence by submitting that there were several allegations levelled against the petitioner by the card holders, which have been explicitly mentioned in the counter affidavit, however, this argument of the learned counsel for the petitioner is not worth consideration in view of the judgment of the Hon’ble Supreme Court rendered in the case of “Mohinder Singh Gill & Anr. Vs. Chief Election Commissioner & Ors. reported in (1978) 1 SCC 405 , wherein the Constitution Bench of the Hon’ble Apex Court has held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and the same cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. An order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. 13. In the case of “Oryx Fisheries (P) Limited Vs. An order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. 13. In the case of “Oryx Fisheries (P) Limited Vs. Union of India & Ors.” reported in (2010) 13 SCC 427 , the Hon’ble Supreme Court has held as under: 28. Justice is rooted in confidence and justice is the goal of a quasi-judicial proceeding also. If the functioning of a quasi-judicial authority has to inspire confidence in the minds of those subjected to its jurisdiction, such authority must act with utmost fairness. Its fairness is obviously to be manifested by the language in which charges are couched and conveyed to the person proceeded against. 14. Now coming back to the present case, the respondent no. 2 appears to have not taken into consideration the allegations made in the show cause notices based upon the complaint of the villagers while passing the impugned order dated 16.01.2017, rather he took a fresh ground of holding multiple ration cards by the family members of the petitioner for which no show cause notice was ever issued to him. Issuance of show cause notice must not be an empty formality, rather the purpose of it is to give prior information seeking sufficient explanation from the erring person so as to enable him to defend himself by adducing sufficient evidence. The respondent no. 3 while deciding the appeal of the petitioner has also not taken into consideration the fact that before passing the impugned order dated 16.01.2017, neither any show cause notice was given to the petitioner nor any inquiry was made particularly for the allegation of possessing multiple ration cards by the family members of the petitioner though there was specific contention of the petitioner that his brother, son and one out of his two wives were living separately from him. 15. In view of the aforesaid factual and legal position, the impugned order dated 16.01.2017 passed by the respondent no. 2 as also the order dated 14.05.2018 passed by the respondent no. 3 cannot be sustained and thus are hereby quashed/set aside. 16. The present writ petition is, accordingly, allowed.