Om Prakash Sahu v. The State Of Bihar

Patna High Court CWJC No.12223 of 2010 (4) dt.16-01-2013 2 5569 of 2005 which was disposed of vide order dated 27.02.2009, as contained in Annexure 3, holding that the writ petition would not be maintainable without exhausting the statutory alternative remedy of appeal, however, at the same time directing the appellate authority to entertain the appeal and decide the same on merit within a period of six months from the date of its filing. Further direction was given to the appellate authority that in case there was an inspection report dated 12.03.2005 of the licensing authority available on the record then a copy thereof would be made available to the petitioner before hearing of the appeal so that if necessary, the petitioner could be able to assail the correctness of such report in course of hearing. Learned counsel for the petitioner has raised several grounds to impress upon this Court that the orders impugned cannot be held to be sustainable in law and are required to be set aside. First ground raised on behalf of the petitioner is that a copy of the report dated 12.03.2005 itself was not supplied to the petitioner, however, the original order passed by the licensing authority as well as the appellate order are based upon some finding of the licensing authority allegedly recorded during the course of inquiry on 12.03.2005. It is submitted that the appellate authority has not recorded any finding as to whether the report was Patna High Court CWJC No.12223 of 2010 (4) dt.16-01-2013 3 available on record or not and why the order should not be given to the petitioner even though such direction was given by this Court in its order as contained in Annexure 3. Another ground is raised that the order of the licensing authority is also based upon the report submitted by the Block Development Officer, Chanpatia, upon which the show-cause notice was issued to the petitioner and reply had been submitted by him. The appellate authority itself has held in the impugned order that at the relevant point of time the Block Development Officer concerned was not a competent authority to hold such inquiry. It is next contended that even the grounds raised by the petitioner in his reply to the show cause notice have not been discussed and considered by the licensing authority while passing the impugned order. Another point raised on behalf of the petitioner is that it has not been disclosed in the impugned order as to who were the complainants. A further point raised on behalf of the petitioner is that last paragraph of the impugned order passed by the licensing authority discloses that the order is being passed on the basis of the report submitted by the Block Development Officer, Chanpatia, who has been held to be incompetent to hold such inquiry by the appellate authority. It is further submitted that since the District Magistrate, West Champaran, is the appellate authority who has actually Patna High Court CWJC No.12223 of 2010 (4) dt.16-01-2013 4 passed the order in the appeal also, the licensing authority, being the statutory body, should have passed the order by application of his own mind and not upon the basis of the direction given by the Collector concerned. Thus, it is contended that the order passed by the Collector in the appeal should also be held to have been passed under prejudiced mind in view of the fact that he has already given direction for cancellation of the licence of the petitioner. A counter affidavit has been filed on behalf of the respondent nos. 2 to 4. It has been admitted in paragraph 14 that a copy of the inquiry report of the Sub-Divisional Officer, Bettiah was not supplied to the petitioner. Though it has not been stated in the counter affidavit as to whether the report is in existence or not but it has fairly been admitted by the learned counsel for the State that there is no such report in existence as the same could not be appended with the counter affidavit also. Upon consideration of rival contention, I find force in the submission raised on behalf of the petitioner. The orders impugned suffer from several illegalities. First illegality is that admittedly the petitioner was asked to file a show-cause in view of the inquiry report submitted by the Block Development Officer dated 26.10.2004, which, according to the appellate authority itself, was not a competent authority to hold such inquiry. Patna High Court CWJC No.12223 of 2010 (4) dt.16-01-2013 5 Secondly, it appears that the inquiry held by the Sub-Divisional Officer, Bettiah was only with an intention to fill up the lacuna created by the Block Development Officer, as he, after the alleged inquiry, has stated in the impugned order that the inquiry report submitted by the Block Development Officer is correct. However, it has not been disclosed in the order as to whose statements were recorded during the course of such inquiry and whether the copy of the statement or inquiry report was supplied to the petitioner or not. Obviously, that could not have been done as the final order was also passed on same day. If the inquiry held by him on

12.03.2005 is assumed to be an enquiry done in accordance with law then again a the subsequent show-cause notice was essential because everything was done behind the back of the petitioner. This Court in the earlier proceeding had directed the appellate authority to supply a copy of the enquiry report to the petitioner before passing the order in the appeal but the same has not been done and now it has been informed that no such report is in existence. Thus, the order impugned appears to have been passed basing upon the inquiry report of the Sub-Divisional Officer concerned which is not in existence. Apart from the above, it appears from the perusal of the order passed by the Licensing Authority that there is no consideration of the grounds raised by Patna High Court CWJC No.12223 of 2010 (4) dt.16-01-2013 6 the petitioner in his reply to the show-cause notice. It is well settled that, in case some action or the order of the authority is going to visit any civil consequence upon a person, a show-cause notice is must and consideration of the grounds raised in the reply thereof would also be mandatory otherwise the order would be held to have been passed in a mechanical manner without application of mind. A reference in this regard is made to a decision rendered by a Division Bench of this Court in M/s Umesh Chandra Dinesh Kumar v. State of Bihar and others, reported in 1999(1) B.L.J., 548. That apart, the order impugned appears to have been passed upon a direction or order given by the District Magistrate himself which would be apparent from the last paragraph of the impugned order passed by the licensing authority. It was none of the business of the District Magistrate to give such direction or order for cancellation of licence of the petitioner specially when he was an authority to examine the legality of the order passed by the original authority in appeal which he has eventually done by passing the order as contained in Annexure 4. In my considered opinion, the respondent-authorities have passed the impugned orders against doctrine of fair play. Thus, in my considered opinion, the orders impugned as Patna High Court CWJC No.12223 of 2010 (4) dt.16-01-2013 7 contained in Annexures 2 and 4 cannot be sustained in law and, accordingly, both are set aside. As a result, this writ application stands allowed. (Dr. Ravi Ranjan, J) SC/-