Jharkhand High Court
Pramila Devi vs The State Of Jharkhand on 16 December, 2022
[1]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 364 of 2018
Pramila Devi, aged about 45 years, wife of Ramawtar Sah, resident of
village-Paharpur, P.O. Ghagri, P.S. Ramgarh, District-Dumka.
... ... Appellant/Petitioner
Versus
1. The State of Jharkhand.
2. Deputy Commissioner, P.O. + P.S. + District-Dumka.
3. Sub-Divisional Officer, P.O. + P.S. + District-Dumka.
... ... Respondents/Respondents
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
-------
For the Appellant : Mr. Rajeeva Sharma, Advocate
Mr. Ritesh Kumar, Advocate
For the State : Mr. Jai Prakash, AAG-IA
Ms. Omiya Anusha, AC to AAG-IA
----------------------------
CAV on 31.08.2022 Pronounced/Delivered on 16/12/2022
Per Sujit Narayan Prasad, J.
1. The appeal under Clause 10 of the Letters Patent is directed against the
order/judgment dated 10.05.2018 passed by learned Single Judge of this
Court in W.P.(C) No. 5596 of 2013, whereby and whereunder, the writ
petition has been dismissed declining to interfere with the order passed by
the administrative authority cancelling the public distribution system (in
short PDS) licence of the writ petitioner.
2. The brief facts of the case as per the pleading made in the writ petition
required to be enumerated, read as under:
The PDS licence issued in favour of the writ petitioner has been
cancelled on the allegation that the writ petitioner was going to sell ration
articles in black-market and on the way it was seized. The authority has
[2]
instituted FIR on the said allegation being Ramgarh P.S. Case No. 39 of
2010 for alleged commission of offence under Section 7 of the Essential
Commodities Act and show cause notice was also issued to the writ
petitioner for cancellation of her PDS licence.
The writ petitioner had filed her reply to the said show cause
notice denying the allegation but the reply having not been found to be
satisfactory, the licence was cancelled.
The writ petitioner preferred an appeal before the Deputy
Commissioner, Dumka being R.M.A. No. 43 of 2010-11 and the appeal
stood dismissed upholding the order of the licensing authority. However, in
the criminal case which was instituted against the writ petitioner for the
alleged offence, he was discharged from the criminal liability. The writ
petitioner preferred a writ petition being W.P.(S) No. 4814 of 2011 for
quashing of the decision of the authority by which the PDS licence was
cancelled on the ground of discharge of the writ petitioner from the
criminal liability since according to the writ petitioner, the cancellation of
licence was based on same facts and evidences which was the issue of the
criminal charge.
The aforesaid writ petition was disposed of vide order dated
09.10.2012 and the learned Single Judge after taking into consideration that
the issue requires consideration, disposed of the writ petition giving liberty
to the writ petitioner to approach the appropriate authority for consideration
of the fact to be decided within the period of two months from the date of
receipt of such representation.
[3]
The writ petitioner filed his representation and a proceeding was
initiated being R.M.P. No. 07 of 2012-13 which was dismissed vide order
dated 24.05.2013 on the ground that the acceptance of the final form by the
learned Chief Judicial Magistrate, Dumka vide order dated 23.11.2010 was
not correct and the same requires an appeal to be filed before the competent
court of law inasmuch as the criminal proceeding is different from the
proceeding of cancellation of licence as prescribed under Trade Articles
Order.
The aforesaid order dated 24.05.2013 was challenged by filing
writ petition being W.P.(S) No. 5596 of 2013 but the same having been
dismissed, the present intra-court appeal has been preferred.
3. Mr. Rajeeva Sharma, learned counsel for the appellant has assailed the
order passed by the learned Single Judge by taking the legal issue, i.e., the
order impugned does not reflect as to under which provision of law the
respondent-authority has cancelled the licence.
It has been contended that the Public Distribution System
(Control) Order, 2001 was not notified by the State of Jharkhand the day
when the power conferred under the said Control Order was exercised by
the authority cancelling the licence.
It has been contended that the Sub-Divisional Officer while
cancelling the licence has taken into consideration the report of the Block
Supply Officer, Ramgarh but the copy of the said report has never been
served upon the writ petitioner. It has been contended that if the Sub-
Divisional Officer was the licensing authority then how can he base his
[4]
order on the opinion given by the Block Supply Officer, Ramgarh which
was obtained during the proceeding dated 15.07.2010.
It has also been contended that the licence which was cancelled
whether it was suspended under clause 11(1) or 11(2) of the Bihar Trade
Articles (Licenses Unification) Order, 1984.
4. This Court has passed an order on 15.01.2020 directing the State to answer
some queries as follows:
"...
(i) Under which provision of law the respondents-authorities have cancelled
the license?
(ii) License was granted under which provision of law?
(iii) License was granted for what purpose?
(iv) Whether the Control Order, 2001 was notified in the State of Jharkhand or
not? If yes, then it was enforced from which date.
(v) Annexure-A, which is the order passed by the Sub Divisional Officer
cancelling the license, notices that the Block Supply Officer, Ramgarh had
given certain report and that report has formed one of the basis for
cancellation of license then whether, along with the show cause notice, the
respondents-authorities had supplied a copy of that report to the licensee or
not to enable him to file a proper reply to the show cause notice?
(vi) If the S.D.O. was the Licensing Authority then how can he base his order
on the opinion given by the Block Supply Officer, Ramgarh which was obtained
during the proceeding dated 15.07.2010?
(vii) If any opinion was sought from an Officer below the rank of Licensing
Authority and that has formed one of the basis of the order of cancellation of
license, whether the copy of that opinion was supplied to the licensee and her
comments were sought for or not?
(viii) Whether the license of the appellant-writ petitioner was suspended before
cancellation or not?
(ix) If it was suspended then whether it was suspended under Clause 11(1) or
Clause 11(2) of the Bihar Trade Articles (Licenses Reunification) Order,
1984?
..."
5. Affidavit has been field by the State on 17.03.2020 wherein reply has been
submitted to the queries made by this Court vide order dated 15.01.2020.
[5]
So far as the query no.(i) is concerned, it has been stated that the
licence of the writ petitioner was cancelled by the Sub-Divisional Officer,
Dumka in the light of the clause 5 of the Public Distribution System
(Control) Order, 2001 with immediate effect vide Memo No. 907 dated
15.09.2010.
So far as the query no.(ii) is concerned, it has been stated that the
licence to the writ petitioner was granted under the provisions of Bihar
Trade Articles (Licenses Unification) Order, 1984.
So far as the query no.(iii) is concerned, it has been stated that
the said licence was granted for the purpose of distribution of food grains
and other commodities to the beneficiary covered under Food and Public
Distribution System.
So far as the query no.(iv) is concerned, it has been stated that
the Control Order 2001 was not notified in the State of Jharkhand.
So far as the query no.(v) is concerned, it has been stated that
along with the show cause notice the respondent authorities had not
supplied a copy of the report of the Block Supply Officer, Ramgarh.
So far as the query no.(vi) is concerned, it has been stated that
the report was called for from the Block Supply Officer, Ramgarh for the
purpose of ascertaining the facts. It was informed by the Block Supply
Officer that the writ petitioner was found to be black-marketing the rice by
the villagers and FIR was lodged in the local police station being Ramgarh
P.S. Case No. 39 of 2010. The Sub-Divisional Officer asked for
explanation from the writ petitioner pursuant to which the writ petitioner
[6]
submitted her explanation which having not been found to be satisfactory,
the PDS licence was cancelled.
So far as the query no.(ix) is concerned, it has been stated that
the licence was suspended under clause 11(2) of the Bihar Trade Articles
(Licenses Unification) Order, 1984. It has further been stated that the
Jharkhand Targeted Public Distribution System (Control) Order, 2017 was
promulgated and framed in the State of Jharkhand in the year 2017 in
exercise of power vested under clause 9 of the Public Distribution System
(Control) Order, 2015 which has been framed under Section 3 of the
Essential Commodities Act, 1955.
6. This Court, after having heard the learned counsel for the parties and taking
into consideration the questionnaire made vide order dated 15.01.2020
which has duly been replied by the State authority by filing counter
affidavit dated 17.03.2020 is required to consider, more particularly by
taking into consideration the fact which is having bearing in the instant
case regarding the jurisdictional issue, that the Public Distribution System
(Control) Order, 2017 in the name and style of Jharkhand Targeted Public
Distribution System (Control) Order, 2017 since was promulgated in the
year 2017 in exercise of rule framed under Section 3 of the Essential
Commodities Act, 1955 then question arises that on what basis the licence
of the writ petitioner was cancelled on 15.09.2010 in exercise of power
conferred under Public Distribution System (Control) Order, 2001.
Further question which requires to be considered that when the
report of the Block Supply Officer, Ramgarh has not been supplied to the
writ petitioner then can it not be said to be violation of principles of natural
justice since the PDS licence has been cancelled based upon the report of
[7]
the Block Supply Officer as has been referred in the order of cancellation
of the PDS licence but the same has not been supplied which has been
admitted by the State authority in the affidavit while answering the query
no.(v).
7. It requires to refer herein that the issue of jurisdiction has not been agitated
before the learned Single Judge, however, the same has been agitated
before this Court and this Court has considered the aforesaid issue on the
basis of the position of law that the issue of jurisdiction is purely the legal
issue and can be raised at any stage.
The intra-court appeal since is the continuation of the proceeding
under Article 226 of the Constitution of India, therefore, the issue of
jurisdiction has been considered and therefore, the order was passed by this
Court on 15.01.2020 asking the State to reply for the purpose of
establishing the authority under which the order has been passed for
cancelling the PDS licence.
8. The position of law is well settled that any action if taken by the concerned
authority without any authority of law, the same is nullity in the eyes of
law. The authority of law confers power upon an authority to take a
decision while exercising the statutory power if conferred under the
specific statute.
9. Here, in the given facts of the case, the PDS licence of the writ petitioner
was cancelled on 15.09.2010 and as would appear from the order of
cancellation which is by virtue of the order dated 27.03.2010 passed by the
Sub-Divisional Officer, Dumka wherein such power has been exercised as
[8]
conferred under clause 5 of the Public Distribution System (Control) Order,
2001.
10. This Court has specifically posed a question upon the respondent-State
whether the Control Order, 2001 was notified in the State of Jharkhand or
not? If yes, then it was enforced from which date?
While replying the same in the counter affidavit dated
17.03.2020 as under paragraph-7, it has been stated that the Control Order,
2001 was not notified in the State of Jharkhand.
11. It is further evident from paragraph-13 that the Jharkhand Targeted Public
Distribution System (Control) Order, 2017 was promulgated and framed in
the State of Jharkhand in the year 2017 in exercise of power vested under
clause 9 of the Public Distribution System (Control) Order, 2015 which has
been framed under Section 3 of the Essential Commodities Act, 1955. For
ready reference, both the paragraphs reads as under:
"7. That in reply to question no. (iv) formulated by the Hon'ble Court by
order dated 15.1.2020 the control order 2001 was not notified in the State of
Jharkhand.
13. That Jharkhand Targeted Public Distribution System (Control) Order,
2017 was promulgated and framed in the State of Jharkhand in the year
2017 in exercise of power vested under clause 9 of the Public Distribution
System (Control) Order, 2015 which has been framed under Section 3 of the
Essential Commodities Act, 1955."
12. The question, therefore, will be that when the aforesaid control order came
into being in the year 2017 then how the licence was cancelled on
15.09.2010.
The respondent-State is not in a position to explain the same and
the same cannot be explained in view of the submission of the State about
the promulgation of the Jharkhand Targeted Public Distribution System
[9]
(Control) Order, 2017 which was promulgated and framed in the year 2017
in the State of Jharkhand.
13. It would be evident from the order of cancellation of PDS licence that the
PDS licence was cancelled in view of the Public Distribution System
(Control) Order, 2001 but when the aforesaid control order was not in
existence the day when the PDS licence was cancelled rather the same has
been promulgated and framed in the year 2017 then how such power has
been exercised.
14. This Court, therefore, is of the view that the day when the PDS licence of
the writ petitioner got cancelled, the concerned authority who has cancelled
the said licence was having no power to take such decision.
The position of law is well settled that any decision taken by the
authority contrary to the authority as has been conferred under the statute,
the same will be treated to be nullity, therefore, herein also the control
order having been promulgated in the year 2017, as such, the power which
was exercised by the Sub-Divisional Officer, Dumka on 15.09.2010 is held
to be nullity in the eyes of law.
15. The other ground, i.e., providing sufficient and adequate opportunity of
hearing is concerned, this Court has posed specific question as to whether
the report of the Block Supply Officer, Ramgarh was served upon the writ
petitioner or not?
It has been replied by the respondent-State in the counter
affidavit that no such report was supplied as would appear from the
statement made to that effect at paragraph-8. For ready reference, the said
paragraph reads as under:
[10]
"8. That in reply to question no. V formulated by this Hon'ble Court vide
order dated 15.01.2020 it is stated that along with the show cause notice the
respondent authorities had not supplied a copy of the report of the Block
Supply Officer, Ramgarh."
16. It is the settled position of law that when any penal action is being taken on
the basis of a report which is being referred in the show cause notice, the
same is mandatorily to be supplied to the concerned so that the proper reply
be filed by going through the content of the report.
17. The respondent-State since has admitted that no report of the Block Supply
Officer, Ramgarh has ever been served to the writ petitioner, therefore, the
same being in violation of principles of natural justice, the order passed by
the licensing authority requires interference.
18. Further, the revisional authority has taken the ground that the cancellation
of licence is having no bearing with the criminal case. The reason has been
assigned that even though the writ petitioner has been discharged from the
criminal liability it requires to be contested by filing revision. The
revisional authority taking the aforesaid ground has refused to interfere
with the order cancelling the PDS licence.
19. This Court, on this context, is of the view that if the writ petitioner has
been discharged from the criminal liability on acceptance of the report of
the Chief Judicial Magistrate and no protest has been made by anyone and
if the cancellation of the PDS licence is totally based upon the institution of
FIR, the discharge of the writ petitioner from the criminal liability ought to
have been taken into consideration instead of taking the ground that the
acceptance of the report is required to be challenged before the higher
court/forum.
[11]
The report which has been accepted by the Chief Judicial
Magistrate requires to be challenged before the higher court/forum, the
same according to the considered view of this Court, ought not to have
been taken into consideration by the revisional authority, reason being that
whether the appeal is to be filed or not that is the concern of the State who
is the prosecutor and if no appeal has been filed, the licencee cannot be
held responsible and cannot be allowed to be deprived from the acceptance
of the final form which ultimately culminated into discharging the writ
petitioner from the criminal liability.
20. This Court, after having discussed the factual aspect has gone across the
order passed by the learned Single Judge and has found therefrom that the
learned Single Judge has accepted the finding recorded by the revisional
authority to the effect that there is no bearing of the criminal case in the
Public Distribution System. It cannot be disputed, so far as the legal
position is concerned, that the issue of criminal liability is having no
bearing in the administrative decision since both run parallel on different
context but it is equally settled that the principle of law is to be tested on
the basis of the given facts of the case as has been held by the Hon'ble
Apex Court in Dr. Subramanian Swamy vs. State of Tamil Nadu and
Others, (2014) 5 SCC 75, paragraph 47 of which reads as under:
"47. It is a settled legal proposition that the ratio of any decision must be
understood in the background of the facts of that case and the case is only
an authority for what it actually decides, and not what logically follows
from it. "The court should not place reliance on decisions without
discussing as to how the factual situation fits in with the fact situation of the
decision on which reliance is placed.""
21. Here, in the given facts of the case, the investigating agency could not be
able to prove the charge and the final form was submitted before the
concerned court which has been accepted and when the very basis of the
[12]
cancellation of the licence is the question of criminal case about black-
marketing of rice which ultimately culminated into discharge of the writ
petitioner from the criminal liability, the same cannot be said to be of no
bearing with the issue of consideration of legality and propriety of the
cancellation of PDS licence.
The matter would have been different if the licence would have
been cancelled on the basis of the inspection conducted on the shop of the
licencee different to that of the criminal case and in course thereof if any
finding would have been arrived at by the licensing authority in the
administrative side then only the principle of non-applicability of the
acquittal in a criminal case or discharge from the criminal liability could
have been taken to of no concern but that is not the fact herein.
22. This Court, in view of the discussion made hereinabove, is of the view that
the order passed by the learned Single Judge requires interference.
Accordingly, the order dated 10.05.2018 passed in W.P.(C) No. 5596 of
2013 is hereby quashed and set aside.
23. In consequence thereof, the writ petition being W.P.(C) No. 5596 of 2013
is allowed.
24. The order cancelling the PDS licence as also the order passed by the
appellate authority in R.M.A. No. 43 of 2010-11 and the order passed by
the revisional authority dated 24.05.2013 in R.M.P. No. 07 of 2012-13 are
hereby quashed and set aside.
25. It has been informed to this Court that as yet the aforesaid licence has not
been granted in favour of any third party rather it has been attached in the
name of different licencee.
[13]
26. Since it has been informed to this Court that the PDS licence in question
has not been granted in faovur of any third party, if that be so, the PDS
licence of the writ petitioner is required to be restored in his favour.
27. This Court, therefore, hereby, directs the licensing authority to consider the
veracity of the fact that the PDS licence in question has not been issued in
favour of any third party so as to take decision for restoration of the PDS
licence in favour of the writ petitioner within a period of four weeks from
the date of receipt of copy of this order.
The licensing authority is further directed, in the circumstances if
the PDS licence has already been issued in favour of any third party, the
same be communicated the same to the writ petitioner giving therein the
details of the licence along with the name of the licencee and the date of its
issuance.
28. In the result, the instant intra-court appeal stands allowed with the above
observation and direction.
29. The original record is directed to be handed over to the learned State
counsel for its onward transmission to the concerned authority.
I agree (Dr. Ravi Ranjan, C.J.)
(Dr. Ravi Ranjan, C.J.)
(Sujit Narayan Prasad, J.)
Saurabh /A.F.R.
