Krishnadeo Kumar v. The State Of Bihar

Patna High Court CWJC No.9170 of 2011 (3) dt.22-01-2013 2 provisions of the Public Distribution System (Control) Order, 2001(hereinafter to be referred to as “the Control Order”) which had been enforced in the State of Bihar vide notification bearing GSR No. 1 dated 20th February, 2007, the authorities have been empowered either to suspend the licence or cancel the same. It is submitted by learned counsel for the petitioner that in view of the order of suspension having already been passed vide Annexure 3, the authority concerned was not empowered to again take steps for cancellation but it has ultimately cancelled the licence of the petitioner on the basis of same charges. It is further submitted that in view of the provisions contained in Clause 7(v) of the Control Order, the suspension of licence of the dealer can be suspended for a maximum period of 90 days only and that period, admittedly, having been lapsed, the order of suspension has outlived its legal life. Learned counsel has placed reliance upon a decision of this Court in case of Md. Safi v. The State of Bihar in C.W.J.C. No. 8017 of 2008 and its analogous cases, disposed of on 18.08.2010 in support of his aforesaid submission. A counter affidavit has been filed on behalf of the State. On the point raised on behalf of the petitioner, it has been submitted that from the order as contained in Annexure 3, it would be apparent that the suspension of the licence of the petitioner vide Patna High Court CWJC No.9170 of 2011 (3) dt.22-01-2013 3 Annexure 3 was in contemplation of a proceeding for cancellation of licence. It is also stated by learned counsel that the petitioner has approached this Court without availing the statutory remedy of appeal. So far the statutory remedy is concerned, in view of the fact that this case has remained pending since the year 2011 and the question raised by the petitioner goes to the root of the jurisdiction of the concerned authority in passing the impugned order, I do not deem it proper to relegate the petitioner to the appellate forum at this stage. Coming back to the main issue, the Bihar Trade Articles (Licenses Unification) Order, 1984(hereinafter to be referred to as “the Unification Order”) was governing the issue prior to coming in force of the Public Distribution System (Control) Order, 2001. Clause 11(2) of the Unification Order empowered the concerned authority to suspend a licence, however, for a period not exceeding 90 days, in contemplation of a proceeding of licence. Later on, the Public Distribution System (Control) Order, 2001 was enforced from 20.02.2007 in the State of Bihar clearly indicating that after enforcement of the aforesaid Control Order the provisions of the Unification Order will not be applicable to the fair price shops under the Public Distribution System. The new Patna High Court CWJC No.9170 of 2011 (3) dt.22-01-2013 4 provisions for suspension and cancellation of the licence have been brought under clause 7(ii) of Public Distribution System (Control) Amendment Order, 2011, which clearly indicates that if any licensee contravenes any provision or any term and condition of licence or any of his duties and responsibilities or any order of the State Government then the licensing authority could suspend or cancel the licence. In Clause 7(v) of the Bihar Control Orders, it has been clearly indicated that suspension of licence can be made for a maximum period of 90 days. The exception has been given in Clause 7(iii) of the Bihar Control Orders that, if a first information report is lodged for contravention of an order issued under the Essential Commodities Act, 1955, then the licence shall remain suspended till the disposal of the proceeding. Upon a conjoint reading of the aforesaid provisions a scenario emerges that in case of contravention of any order or the provisions or the terms of licence the licensing authority can either suspend or cancel the licence. The earlier provision of suspension of licence during the pendency of a proceeding in contemplation of cancellation of the same has been omitted. Thus, it can safely be construed that the order of suspension is also by way of punishment or penalty like the order of cancellation for contravention of the orders, or the provisions or the terms of licence. Thus, for the selfsame charges Patna High Court CWJC No.9170 of 2011 (3) dt.22-01-2013 5 both penalty/punishment cannot be imposed upon the licensee by first suspending the licence and subsequently cancelling the same. This issue has been considered by this Court in detail in case of Pradhuman Chaudhary and others v. The State of Bihar and others, reported in 2010(4) Patna Law Journal Reports, 178, and it has been held by this Court that suspension would also amount to penalty/punishment. The authorities concerned were not empowered cancel licence imposing penalty/punishment for the selfsame charges. In the present case also it is admitted case that the charges, which were in the mind of the licensing authority at the time of passing of the impugned order of suspension or subsequently the order of cancellation, were the same. In above view of the matter, this Court would not have any difficulty in following the aforesaid decision rendered by this Court in Pradhuman Chaudhary and others (supra). That apart, a further amendment has been brought vide Public Distribution System (Control) Amendment Order, 2011 by which the provisions of clauses (iii), (iv) and (v) of para-7 of the Control Order have been omitted. Thereafter the clarification of the State Government has come up on 20.01.2012 as contained in letter no. Pra-7-Vi Pa(Ashwa)-12/2012-387 Khadya, Patna. A Patna High Court CWJC No.9170 of 2011 (3) dt.22-01-2013 6 copy of the same has been produced at the time of hearing of this application which clearly indicates that with respect to the fair price shop owner against whom no criminal case is pending under section 7 of the Essential Commodities Act, 1955, the order of suspension should be immediately withdrawn. It is further mentioned therein that after 26.06.2011, i.e. the date of coming of the provisions of amendment, as stated above, the licences would not be suspended. Relevant passage the aforesaid clarification is produced as under: ftu ekeyksa esa 7 EC ds ekeys ntZ gS muesa **vr% ,slh fLFkfr esa fnukad 23-6-2011 ds iwoZ fuyafcr nqdkuks a ds lEcU/k esa fuEu dkjZokbZ visf{kr gSA%& 1- ftu nqdkuksa ds fo:) 7 EC ds vUrxZr ekeys ntZ ugha gS mudh vuqKfIr ds fuyEcu dks vfoyEc lekIr fd;k tk; rFkk mDr nqdkuksa dk vkoaVu pkyw fd;k tk;A 2- U;k;ky; ds vkns”k dh izrh{kk dh tk;A 3- esa vuqKfIr dks fuyfEcr ugha dh tkuh gSA d‘i;k lHkh vuqeaMy inkf/kdkjh dks rn~uqlkj dkjZokbZ djus gsrq funsf”kr fd;k tk; ,oa d‘r dkjZokbZ ls foHkkx dks voxr djkrs gq, ,d izfrosnu layXu izi= esa 15 fnuksa ds vUnj Hkstus dh d‘ik dh tk;A** fnukad 23-6-2011 ds ckn fdlh Hkh ifjfLFkfr It is also admitted by the parties that no first information report has been lodged against the petitioner for contravention of the provisions under section 7 of the Essential Commodities Act. Thus, in my opinion, since the order of suspension has outlived its life and after expiry of 90 days from passing of such Patna High Court CWJC No.9170 of 2011 (3) dt.22-01-2013 7 order, the same would not have any legal effect. Accordingly, the impugned order as contained in Annexure 5 is hereby quashed and set aside. The respondents are directed to resume the supplies to the petitioner. As a result, this writ application stands allowed. (Dr. Ravi Ranjan, J) SC/-