Nagendra Prasad Gupta vs The State Of Bihar
2021 Latest Caselaw 118 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.8769 of 2020
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Nagendra Prasad Gupta Son of Banwari Sahu, Resident of Village - Gonpura, P.S. - Phulwari Sharif, District - Patna.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Food and Consumer Protection Department, Old Secretariat, Patna.

2. The District Magistrate, Patna.

3. The Sub-Divisional Officer, Patna Sadar, District - Patna.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr.Rajeev Kumar Labh, Adv. For the Respondent/s : Mr.Lalit Kishore AG ====================================================== CORAM: HONOURABLE MR. JUSTICE MADHURESH PRASAD ORAL JUDGMENT Date : 13-01-2021

Heard learned counsel for the petitioner and learned

counsel for the respondents.

The petitioner's Public Distribution System License has

been cancelled by the impugned order dated 25.01.2020. The

petitioner has approached this Court seeking quashing of the

said order.

Penal consequence of the cancellation of his license is

based on allegation that he has misappropriated the foodgrains

supplied to him for distribution under the Public Distribution

System. The order, as per petitioner's counsel is without even

affording the petitioner, an opportunity of hearing in terms of

the provisions contained in Rule 27 (ii) of the Bihar Targeted Patna High Court CWJC No.8769 of 2020 dt.13-01-2021

Public Distribution System (Control) Order, 2016 (hereinafter

referred to as the 'Control Order').

The learned counsel for the State, based on the averments

made in the counter affidavit, raises an objection to filing of an

instant writ petition by submitting that the petitioner has

adequate alternative remedy of appeal under the Control Order.

Without exhausting the remedy of appeal, he has directly

rushed to this Court. The submission is that very severe

allegations were made against the petitioner of misappropriating

the foodgrains, which he has diverted to his own brothers rice

mill. Keeping in view the serious allegations against the

petitioner, this Court may not exercise writ jurisdiction in favour

of the petitioner. The counsel for the State has vehemently

raised an objection regarding the writ petition being barred on

the ground of alternative remedy of appeal available to the

petitioner under Rule 32 of the Control Order.

This Court is conscious of the legal position that the

scope of judicial review is confined to the decision making

process, and not the decision itself.

Insofar as objection regarding writ not being

maintainable due to available alternative remedy, is concerned,

this Court would observe that under Article 226 of the Patna High Court CWJC No.8769 of 2020 dt.13-01-2021

Constitution of India, this Court exercises plenary jurisdiction to

issue orders, directions and writs for the enforcement of

fundamental rights and for "any other purpose". It is trite law

that there is no absolute bar to exercise of writ jurisdiction

because alternative remedy is available to the petitioner. Such

objection has to be considered, in the facts and circumstances of

each case. Exercise of jurisdiction is discretionary and where

there exists adequate alternative remedy, the Courts normally

refuse to invoke Article 226 of the Constitution of India in

favour of a petitioner. This, however, does not impose an

absolute bar as exclusion is a rule of discretion. In an

appropriate case the writ Court cannot be rendered helpless on

account of existence of an alternative remedy. The jurisdiction

vested by the Constitution cannot be divested merely by an

alternative remedy, as injustice has to be struck down so as to

sustain the rule of law.

By now the law is well settled by decisions of the Apex

Court that in at least four circumstances, which this Court is

referring to hereinafter, the Constitutional Courts under Article

226, may exercise its discretion to invoke its writ jurisdiction

in favour of the petitioner before it, namely:

(i) where the writ petition seeks enforcement of Patna High Court CWJC No.8769 of 2020 dt.13-01-2021

fundamental rights

(ii) where there is violation of the principles of natural

justice

(iii) where the order or proceedings against which the writ

petition has been filed is without jurisdiction, or

(iv) where the vires of an Act is the subject of the writ

proceedings.

Some precedents of the Apex Court laying down this

settled legal position and reiterating the same are to be found in

Union of India Vs. Tantia Construction (P) Ltd. (2011) 5 SCC

697, M P State Agro Industries Development Corporation Ltd.

vs. Jahan Khan (2007)10 SCC 88, L.K.Verma vs. H.M.T. Ltd.

(2006)2 SCC 269.

After filing of the counter affidavit, the admitted position

that emerges is that no show cause notice or opportunity of

hearing was granted to the petitioner. The admitted fact is that

the order of the Sub Divisional Officer dated 25.01.2020, is

violative of the principle of natural justice, apart from being

violative of Rule 27(ii) of the Control Order. These facts,

viewed with the settled legal position in the background, make

out a case for exercise of writ jurisdiction in favour of the

petitioner for quashing of the impugned order dated 25.01.2020.

Patna High Court CWJC No.8769 of 2020 dt.13-01-2021

The order of the Sub Divisional Officer, Patna Sadar

dated 25.01.2020 cancelling the petitioner's Public Distribution

System License stands quashed. The petitioner is entitled to the

consequential benefit of restoration of his license. The

Authority, however, would be at liberty to proceed against the

petitioner in accordance with law.

The writ petition stands allowed.

(Madhuresh Prasad, J)

shyambihari/-

AFR/NAFR                AFR
CAV DATE                N/A
Uploading Date          09.02.2021
Transmission Date