Haradangi Paswan vs The State Of Bihar
2023 Latest Caselaw 5278 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.875 of 2023
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Haradangi Paswan, Son of Late Sahagu Paswan @ Sahanu Paswan, Resident of Village- Ratanpura, P.S.-Motipur, District- Muzaffarpur.

... ... Petitioner/s

Versus

1. The State of Bihar through the Principle Secretary, Food and Consumer Protection Department, Government of Bihar, Patna.

2. The Collector cum District Magistrate, Muzaffarpur

3. The Sub-Divisional Officer, Cum Licensee Officer, (West), Muzaffarpur.

4. The Block Supply Officer, Motipur, District- Muzaffarpur.

... ... Respondent/s

====================================================== Appearance :

For the Petitioner/s : Mr.Jai Prakash Verma, Adv. For the Respondent/s : Mr.Arvind Ujjwal (Sc4)

====================================================== CORAM: HONOURABLE MR. JUSTICE A. ABHISHEK REDDY ORAL JUDGMENT

Date : 11-10-2023

Head learned counsel for the parties.

2. The present writ petition has been filed for the

following relief(s):-

"For quashing of order dated 14.10.2022 passed in Supply Appeal Case no. 05/2020-21 by the learned Collector cum District Magistrate, Muzaffarpur (Respondent no.2 herein), whereby and where under said appeal of the petitioner dated 4.2.2020 has been rejected and by which order passed by the Sub-

Divisional Officer, West, Muzaffarpur, Patna High Court CWJC No.875 of 2023 dt.11-10-2023

(Respondent no.3 herein) as contained in memo no. 1747/supply dated 10.12.2019 cancelling P.D.S. License no. 23020170/ 2018 of the petitioner has been affirmed observing therein that order passed by the court below is speaking and in accordance with law and don't feel the need to interfere in it and further prayer for a direction to the respondent no.3 to restored the P.D.S. Shop of the petitioner bearing License no.23020170/2018, with respect to Gram Panchayat Raj, Kalyanpur Harauna, Block- Motipur, Distt-Muzaffarpur. And for the other necessary relief or reliefs for which the petitioner is entitle to in accordance with law".

3. Learned counsel appearing on behalf of the

petitioner has stated that the Sub-Divisional Officer while

issuing the show cause notice to the petitioner has not enclosed

the enquiry report and there is no proposal for cancellation of

the license in the show-cause notice.

4. Learned counsel has stated that non-mentioning of

the proposal for cancelling his license is contrary to the

provisions of order 27(ii) of the Bihar Targeted Public

Distribution System (Control) Order, 2016 (hereinafter referred

to as 'the Order, 2016')

5. Further learned counsel has relied on the judgment Patna High Court CWJC No.875 of 2023 dt.11-10-2023

of this Hon'ble Court in CWJC No.253 of 2014 dated

11.03.2015 wherein this Hon'ble Court has held that the non-

supply of the enquiry report along with the show-cause is bad

and against the principle of natural justice and equity.

6. Learned counsel has further stated that petitioner

has taken the above ground in the appeal, but the appellate

authority has not dealt with the above ground and dismissed the

appeal in a mechanical manner.

7. Learned counsel for the petitioner has also relied on

the judgment of the Full Court passed in CWJC No.21202 of

2021 and analogous cases dated 26.09.2023 to buttress his

contention that non-mentioning of the proposed action in the

show-cause notice is bad in law and contrary to Rule 27(ii) of

the Control Order, 2016.

8. Learned counsel has stated in view of the above

mentioned provisions of law and judgments relied by the

petitioner, the impugned order may be set aside and matter

remanded back to the authorities concerned for issuing a fresh

show-cause notice in terms of order 27(ii) of the Control Order,

2016 and also furnish a copy of the enquiry report along with

the said show-cause notice and thereafter take necessary action.

9. Per contra, the learned counsel appearing on behalf Patna High Court CWJC No.875 of 2023 dt.11-10-2023

of the respondents has vehemently opposed the very

maintainability of the writ petition and stated that the present

writ petition is not maintainable as the petitioner has an

alternative and efficacious remedy of filing a revision before the

Commissioner. Learned counsel has therefore prayed this

Hon'ble Court to dismiss the present writ petition.

10. This Court in CWJC No.253 of 2014 dated

11.03.2015 held as under:

"In my opinion, irregularities in maintenance of notice board or maintenance of the stocks within the premises of the petitioner are too trivial and cannot form a basis for cancellation of licence. No doubt there were other serious charges against the petitioner regarding non-issuance of cash-memo to the consumers, distribution of lesser amount of kerosene oil and non-distribution of food- grains but surprisingly even while making such allegations, the names of such consumers who are dissatisfied by such action of the petitioner are conspicuously missing. The allegations are sweeping in nature without reference to any specific consumer.

In my opinion the non-supply of the enquiry report conducted by the District Level Committee which is the foundation for issuance of show cause notice placed at Annexure-1 as well as non-supply of names of such of the consumers who had complained against the petitioner as regarding the irregularities in distribution of the food-grains or the kerosene oil has prejudiced the petitioner to file his purposeful reply and in absence thereof, the Patna High Court CWJC No.875 of 2023 dt.11-10-2023

order impugned in my opinion, are based on no materials.

Though it was strenuously argued by Mr. Pandey that in absence of any response by the petitioner the allegations would be deemed to have been admitted but in my opinion even if the show cause reply was missing, the orders passed by the statutory authorities having civil consequences and resulting in cancellation should reflect application of mind.

Unfortunately it is grossly missing inasmuch as neither the order of the Licensing Authority nor the order of the appellate authority deal with the materials which formed the basis to drive home the charges. The orders impugned are indefensible and cannot be upheld."

11. Further this Hon'ble Court in CWJC No.21202 of

2021 and analogous cases has held as under:

"19. Accordingly, we answer the reference as under:-

It is mandatory for a licensing authority issuing a notice under order 27(ii) to a license to mention that there is a proposal for cancellation of his license, failing which such notice cannot be treated to be a valid notice of giving sufficient opportunity to the licensee to state his case under order 27(ii) of the BTPDS Control Order. "

12. A perusal of the show-cause notice issued to the

petitioner does not reveal that the copy of the enquiry report was

enclosed along with the show-cause notice and that there is no

proposal of the action sought to be taken against the petitioner. Patna High Court CWJC No.875 of 2023 dt.11-10-2023

13. Having regard to the above facts and

circumstances and the law laid down by this Hon'ble Court, the

present CWJC is allowed. The impugned order dated

14.10.2022 passed by the appellate authority and the order dated

10.12.2019 passed by the Sub-Divisional Officer are set aside.

The matter is remanded back to the Sub-divisional Officer

(Respondent No. 3) for issuing a fresh show-cause notice to the

petitioner strictly in compliance with the provisions of Rule

27(ii) of the Control Order, 2016 and also furnish a copy of the

enquiry report along with the Show Cause Notice to the

petitioner and call for his explanation by giving reasonable time.

14. On such show-cause notice being served, the

petitioner shall file his explanation within the stipulated time.

On receipt of the explanation submitted by the petitioner the

authority concerned shall pass a reasoned orders strictly in

accordance with law duly taking into consideration the

explanation submitted by the petitioner.

15. It is needless to mention that before passing any

orders, the petitioner shall be given an opportunity of hearing.

The entire exercise shall be completed as expeditiously as

possible preferably within a period of eight weeks from the date

of receipt of a copy of this order. Any order passed shall be Patna High Court CWJC No.875 of 2023 dt.11-10-2023

communicated to the petitioner.

16. With the above directions, this Writ Petition is

allowed to the extent indicated above.

(A. Abhishek Reddy , J)

Bhardwaj/-

AFR/NAFR
CAV DATE
Uploading Date          17.10.2023
Transmission Date