Akhalakh Ansari vs State Of Bihar And Ors

The present writ petition has been filed challenging the order dated 09.07.2016, passed in Supply Case no. 8 of 2016 by the Sub-Divisional Officer-

cum-Licensing Authority, Rohtas at Sasaram, whereby and whereunder the P.D.S. licence of the shop of the petitioner has been cancelled as also for

setting aside the order dated 16.09.2016, passed in Appeal Case no. 17 of 2016 by the District Magistrate, Rohtas at Sasaram, whereby and

whereunder the aforesaid order dated 09.07.2016 has been upheld and the appeal of the petitioner has been rejected.

Shorn of the details, it would suffice to state that a show cause notice dated 23.02.2016 was issued to the petitioner calling upon him to submit his

show cause reply within a period of 02 days as to why appropriate action be not taken against him on account of discrepancy found in the date of birth

of his father. The petitioner is stated to have submitted his reply, however without properly considering the same, the Sub-Divisional Officer, Rohtas at

Sasaram had cancelled the licence of the P.D.S. shop of the petitioner bearing Licence no. 1 of 2015 by an order dated 09.07.2016, whereafter the

petitioner had challenged the same by filing an appeal bearing Appeal Case no. 17 of 2016, however the same has also been dismissed the learned

District Magistrate, Rohtas at Sasaram by an order dated 16.09.2016.

The learned counsel for the petitioner has made a short submission to the effect that the impugned orders dated 09.07.2016 and 16.09.2016 are bad

on account of the fact that the show cause notice dated 23.02.2016, served upon the petitioner, does not state about the proposed action of

cancellation of his licence in the event of his show cause reply being found to be un-satisfactory, resulting in the petitioner being denied reasonable

opportunity to state his case against the proposal of cancellation of his licence, which has further led to violation of the Principles of Natural Justice. In

this regard, the learned counsel for the petitioner has referred to a judgment reported in 2018 (4) PLJR 516 (Ram Bachan Ram vs The State Of Bihar

& Ors.), paragraph no. 6 whereof, is reproduced hereinbelow :-

“6. Even though, the respondents have filed a counter affidavit and have tried to justify the action, we find that under sub-clause (ii) of

Order 27 of the Control Order, 2016, it is clearly stipulated that no order of cancellation of a licence shall be made until the licensee has

been given sufficient opportunity to state his case against the proposal of cancellation. The words, ‘proposal for cancellation’

appearing in the statutory provision clearly contemplates that when the show cause notice is issued, licensee should be categorically

informed that there is ‘proposal for cancellation of licence’ and show cause notice issued as to why licence should not be cancelled.

In the show cause notice issued to the petitioner, apart from the fact that there is no such proposal indicated asking him to show cause as to

why licence should not be cancelled, we find that on the second ground also, the impugned action is not sustainable inasmuch as the

petitioner gave a detailed explanation and justification against the proposed action, as is contained in Annexure-6, and in a cryptic

manner, without considering the explanation and defence of the petitioner, his licence has been cancelled. This amounts to violation of

principles of natural justice inasmuch as the non-application of mind and passing an order adverse to or prejudice to a person without

considering his defence is also a facet and the requirement of principles of natural justice and this having not been followed, we are of the

considered view that principle laid down in the case of Whirlpool Corporation (supra) squarely applies in this case. The order impugned

suffers from material legal infirmity and on this court itself without relegating to the petitioner to take recourse to the statutory remedy

available, the question could have been considered by the learned Writ Court as is apparent from the face of record that there is statutory

violation or violation of the principles of natural justice.â€​

The learned counsel for the State has submitted that the show cause reply, submitted by the petitioner has been considered at length and only then

the aforesaid impugned orders have been passed. Nonetheless, the learned counsel for the State has not disputed the position, as is existing in law.

I have heard the learned counsel for the parties and gone through the materials on record. At the outset, it would be relevant to reproduce Clause

27 of the Bihar Targeted Public Distribution System (Control) Order, 2016 hereinbelow :-

“27. Cancellation of License. - (i) If a licensee violates any provision of this Order or fails to comply duties and responsibilities assigned

to the 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 far as possible, after coming in

cognizance as for.â€​

It is clear from a bare perusal of the aforesaid Clause 27 of the Bihar Targeted Public Distribution System (Control) Order, 2016 that in case, the

respondent-authorities proposes to cancel the licence of the P.D.S. shop of a licence holder, the licencee has to be given sufficient opportunity to state

his case against the proposal of cancellation of his licence, however in the present case, the show cause notice dated 23.02.2016, nowhere mentions

about the proposal of cancellation of licence if the show cause reply of the petitioner is found to be un-satisfactory, hence it is apparent that the

petitioner has been denied reasonable opportunity to represent his case against the proposed punishment of cancellation of licence, which in turn has

led to violation of the Principles of Natural Justice, hence in the opinion of this Court, the impugned order dated 09.07.2016, passed by the Sub-

Divisional Officer-cum-Licensing Authority, Rohtas at Sasaram in Supply Case no. 8 of 2016 is bad in law, hence is quashed. Consequently, the

appellate order dated order dated 16.09.2016, passed in Appeal Case no. 17 of 2016 by the District Magistrate, Rohtas at Sasaram has got no legs to

stand, thus is also set aside.

The writ petition stands allowed, however with liberty to the respondent-authorities to proceed afresh, in accordance with law, if they so desire.