Chandrika Manjhi Son Of Badan Manjhi v. The State Of Bihar

issues at the time of hearing of the case. First issue raised by the 2 Patna High Court CWJC No.19335 of 2011 (4) dt.06-03-2013 petitioner is that the copies of the enquiry report and the statements of the complainants were not served upon the petitioner prior to taking a final decision by the Licensing Authority so that a proper reply to the show cause notice dated 17.8.2011, as contained in Annexure-4, could have been submitted by him. Second issue raised on behalf of the petitioner is that there is no proper consideration of the reply to the show cause notice filed on behalf of the petitioner. A counter affidavit has been filed on behalf of the State. In paragraph-8 thereof, it has been admitted that the copy of the preliminary enquiry report was not served upon the petitioner which was merely a preliminary enquiry with regard to complaints made against the petitioner. It has further been stated that the same would not cause any prejudice to the petitioner.

However, at the time of hearing of this writ application, Mr. D.K. Sinha, learned Additional Advocate General-2 has submitted that since the petitioner has appended Annexure-3 which is the report of the Sub Divisional Officer, upon consideration of which, the impugned order has been passed, he cannot make a claim that the enquiry report was not given to him specially when no such claim has been made in the reply to the show cause filed by the petitioner. However, the averment made in paragraph-8 is contrary to the submission made by 3 Patna High Court CWJC No.19335 of 2011 (4) dt.06-03-2013 learned AAG-2. However, at this juncture, it is submitted by him that the enquiry report seems to be available with the petitioner but the statement of the complainants were not available. Even assuming that to be correct, in my opinion, the statement made by the beneficiaries who have raised complaint against the petitioner during the enquiry or upon which the enquiry was conducted should have been supplied to the petitioner prior to taking a final decision so that a proper reply to the show cause could have been furnished by him.

Clause-7(ii) of the aforesaid Control Order clearly lays down that no order of cancellation shall be made by the Licensing Authority unless a reasonable opportunity is afforded to the licensee to explain his case against the proposed cancellation. It is surprising as to how such stand has been taken on behalf of the State that, even without knowing the extent of the complaint made against the petitioner, he could have put forward his case against the proposed action of cancellation and how such action could be termed as granting reasonable opportunity to the petitioner. Apart from the above, it is clear from Annexure-4, which is the show cause notice dated 17.8.2011, that about five charges have been framed out of which the Charge No.4 is that consumers of village Harsingra, Ward No.2 have stated that they were not given food grains for about two years. The petitioner has dealt with this charge in paragraph-1 of his show cause.

The order 4 Patna High Court CWJC No.19335 of 2011 (4) dt.06-03-2013 impugned has been passed as if that was the only charge which was levelled against the petitioner but, in my opinion, the issue which has been raised in paragraph-4 of Annexure-5 was not considered in its proper perspective as no specific reason has been recorded for rejecting the same except claiming it to be without any foundation which would not be sufficient. In paragraphs 1 to 3, the petitioner has dealt with the other charges but the same does not appear to have been considered by the Licensing Authority. From the show cause notice, it appears that the petitioner was directed to produce the concerned registers of stock and distribution as well as the cash memo but nowhere it has been stated that the petitioner has not submitted those documents before the Licensing Authority. Thus, in my opinion, there is no proper consideration of the reply to the show cause filed by the petitioner also apart from the lacuna as discussed above.

At this juncture, learned AAG-2 raises an issue that the petitioner has approached this Court without availing the statutory remedy of appeal. This submission raised on behalf of the State is noted only to be rejected inasmuch as the moment the Court is satisfied that no reasonable opportunity was provided to the petitioner prior to cancellation of licence and also that there is lack of consideration of his reply to show cause notice also, no 5 Patna High Court CWJC No.19335 of 2011 (4) dt.06-03-2013 useful purpose would be served by relegating the petitioner to the appellate authority at this stage. In above view of the matter, the impugned order as contained in Annexure-6, in my opinion, cannot be sustained in law and is quashed and is set aside. The matter is remitted back to the Licensing Authority for reconsideration after serving the necessary documents upon which the show cause notice was issued and, thereafter, the petitioner should be given an opportunity to give a reply to the show cause notice and only then a final decision should be taken by the Licensing Authority on its own merit and in accordance with law by recording reasons.