Patna High Court
Pradip Kumar Paswan vs The State Of Bihar on 4 March, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.8449 of 2020
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Pradip Kumar Paswan, Son of Ram Prasad Paswan, Resident of Village
Samoul, Block Rahika, P.S. Madhubani, District Madhubani.
... ... Petitioner/s
Versus
1. The State of Bihar through Secretary, Food and Consumer Protection,
Government of Bihar, Patna.
2. The District Magistrate, Madhubani.
3. The Sub Divisional Officer Sadar, Madhubani.
4. The Block Supply Officer, Rahika, District Madhubani.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Manoj Kumar Jha, Advocate
For the Respondent/s : Mr.Prashan Pratap GP-2
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CORAM: HONOURABLE MR. JUSTICE MADHURESH PRASAD
ORAL JUDGMENT
Date : 04-03-2021
Heard learned counsel for the petitioner and learned counsel
for the State-respondent.
2. The petitioner, who is a Public Distribution System
licensee, has approached this Court seeking quashing of order
dated 22.08.2020 under memo No. 561 whereby and whereunder
the Sub Divisional Officer, Sadar, Madhubani (hereinafter referred
to as the "SDO") has cancelled the PDS license of the petitioner
bearing PDS license No. 44 of 2017 on the alleged ground of
violation of certain provisions of the Bihar Targeted Public
Distribution System (Control) Order 2016 (hereinafter referred to
as the "Targeted Control Order")
3. The brief facts are that the Block Supply Officer, Rahika
visited the petitioner's shop on 16.05.2020 to conduct an
inspection of his PDS dealership. An inspection report has been
submitted in respect of the inspection by the Block Supply
Officer, under letter dated 08.06.2020, bearing letter No. 60 to the
Patna High Court CWJC No.8449 of 2020 dt.04-03-2021
SDO. Based on this inspection report, the SDO issued a show
cause notice to the petitioner on 16.06.2020, asking him to reply
within 48 hours with respect to 06 allegations which were as
follows:-
(i) Shop was found closed.
(ii) The weights and measure license was not valid.
(iii) Notice Board did not display the requisite information.
(iv) Beneficiaries were not being made available the
foodgrains on Government determined rates and weight
(quantity).
(v) Beneficiaries were being given foodgrains on two months.
(vi) The petitioner was misbehaving with the beneficiaries.
4. The petitioner responded to the said show cause notice
under his reply dated 27.06.2020. The SDO, thereafter, on
22.08.2020, has issued the impugned order cancelling the
petitioner's PDS license.
5. The petitioner's counsel has submitted that the SDO has
proceeded against the petitioner with a pre-conceived intention of
cancelling his license. Only 48 hours time was allowed, as per the
show cause notice dated 16.06.2020. The inspection report dated
08.06.2020, allegedly submitted by the Block Supply Officer, has
not been made available to the petitioner along with show cause
notice. Lastly, it is submitted that the order of the SDO takes into
consideration complains and statements made by certain
beneficiaries forwarded by the Ward Member and Mukhiya as well
as the inspection report 16.06.2020 issued by the Block Supply
Officer. Copies of none of these documents have made available
to the petitioner. The order itself is also cryptic and shows total
non- application of mind by the SDO.
Patna High Court CWJC No.8449 of 2020 dt.04-03-2021
6. Earlier, time was granted to the State counsel for filing
counter affidavit, on 05.02.2021. By way of last indulgence one
week's further time was granted on 24.02.2021 with a clear
stipulation that if counter affidavit is not filed, this Court would
proceed further presuming that the State has nothing to comment in
respect of the averments made in the writ petition. Till today,
counter affidavit has not been filed. However, Mr. Prashant Pratap,
learned State counsel, has appeared and submitted that the
petitioner has alternative remedy under the Targeted Control Order.
In view of such alternative remedy available to the petitioner, this
Court should refrain from exercising writ jurisdiction. The
petitioner, on account of his violation of the provisions of the
Targeted Control Oder, has caused great suffering to the
beneficiaries, who are poor people, that also at a time when there
was general crisis during the global Covid -2019 pandemic.
7. On a consideration of the submission advanced by the
parties, this Court would finds that the show cause notice dated
16.06.2020 does not contain copies of the alleged statements of
beneficiary supporting allegations against the petitioner as
forwarded through the Ward Member(s). It also does not contain a
copy of the inspection report dated 08.06.2020 of the Block Supply
Officer, based on which, the show cause notice has been issued.
The impugned order dated 22.08.2020, however, takes into
consideration and is based on these materials.
8. In view of these facts, and situation, it becomes relevant
to consider Clause 27 of the Targeted Control Order regarding
cancellation of the license, which reads as follows:-
"27. Cancellation of license
(i) If a licensee violates any provision of this order or
fails to comply duties and responsibilities assigned to the
Patna High Court CWJC No.8449 of 2020 dt.04-03-2021
license, his license shall be cancelled by the licensing
authority by a written order, and such a cancellation of
license shall not affect other actions initiated /initiable
under the Essential Commodity Act, 1955 (Central Act 10 of
1955).
(ii) No order of cancellation of a license shall
be made until the licensee has been given sufficient
opportunity to state his case against the proposal of
cancellation of his license.
(iii) The cases of violation of the provisions of
this Order shall be disposed of within two months, as a far
as possible, after coming in cognizance as for."
9. Bare perusal of the provisions makes it abundantly clear
that the order of cancellation of license cannot be made until the
licensee has been given sufficient opportunity to state his case
against the proposal of cancellation of his license. For the Licensee
to realize this opportunity, it is a legal and natural corollary that the
show cause notice shall propose cancellation of his license and
provide the allegations and material in support of the allegations. In
the instant case, even the inspection report of the Block Supply
Officer has not been made available to the licensee let alone the
alleged statement of the beneficiaries recorded and forwarded
through the Ward Member(s).
10. The petitioner has never seen the report of the Block
Supply Officer dated 08.06.2020 nor has he had the opportunity of
seeing the alleged statements of beneficiaries. Since the same has
not been provided to the petitioner the opportunity granted under
show cause dated 16.06.2020, is clearly insufficient. The petitioner
or any licensee cannot give a reply unless he knows the basis of the
Patna High Court CWJC No.8449 of 2020 dt.04-03-2021
allegations and the material in support thereof. It is only after the
same is provided that it can be said that the licensee has been given
"sufficient opportunity to state his case against the proposal of
cancellation of his license" as contemplated under Clause 27 (ii) of
the Targeted Control Order. This Clause is only in furtherance of
principles of natural justice. Therefore, there is a requirement of
affording sufficient opportunity in terms of the principles of natural
justice before visiting he licensee/petitioner with a consequence of
cancellation of his PDS license.
11. In the instant case apparently Clause 27(ii) of the
Targeted Control Oder has not been complied with. The order of the
SDO cancelling the petitioner's license is also in violation of the
principles of natural justice.
12. In respect of the objection raised by the State Counsel
regarding availability of alternative remedy and that in view of the
same this Court should refuse to exercise writ jurisdiction in favour
of the petitioner, this Court would observe, that it is trite law that
the availability of alternative remedy of refusal to exercise writ
jurisdiction in favour of a petitioner is a rule of discretion. Recently
this Court in the case of Nagendra Prasad Gupta vs. The State of
Bihar and others in CWJC No. 8769 of 2020 reiterated the law in
this regard. The extract of the order passed in CWJC No 8769 of
2020 is worth reproducing in the instant case which reads as
follows:-
"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:
Patna High Court CWJC No.8449 of 2020 dt.04-03-2021
(i) where the writ petition seeks enforcement of
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."
13. In the facts and circumstances of the case, the order of
the SDO Sadar, Madhubani, dated 22.08.2020 cancelling the
petitioner's Public Distribution System License being violative of
the principles of natural justice is hereby, 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.
14. The writ petition stands allowed.
(Madhuresh Prasad, J)
shyambihari/-
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 04.03.2021
Transmission Date
