Naresh Chaudhari v. The State Of Bihar

For the Petitioner/s : Mr. Binay Kumar For the Respondent/s : Mr. Anjani Kr Sharan SC-9 ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA ORAL ORDER 4 03-09-2013 Heard learned counsel for the petitioners and learned counsel for the State. Learned counsel for the petitioners makes a prayer to delete the petitioner no. 2 from the writ application as no relief has been sought on his behalf. In the facts and circumstances, learned counsel for the petitioners is permitted to delete the name of petitioner no. 2 in the course of the day. 2 Patna High Court CWJC No.10420 of 2012 (4) dt.03-09-2013 The petitioner had filed the writ application for a direction upon the respondents to continue allocation to the fair price shop of petitioner no. 1 Naresh Chaudhary, the sole petitioner after the deletion of petitioner no.2. So far as the relief regarding release of 29 quintals of wheat and commercial vehicle mini truck Tata 407 bearing registration No. BR 2G 6228 is concerned, learned counsel for the petitioner does not press the said relief since the petitioner no. 2 has been deleted from the present writ application and he may be given a liberty to raise the matter in another proceeding before appropriate forum. The liberty sought is allowed. During the pendency of the writ application the licence of the petitioner, Naresh Chaudhary was cancelled by order dated 6.9.2012 which has also been sought to be quashed by filing an interlocutory application. The petitioner is a PDS dealer. On 19.4.2012 on a mini truck bearing registration No. BR 2G 6228, 41 quintals of rice was going to the destination of fair price shop of the petitioner and was intercepted and seized by the Block Supply Officer along with police personnel of Fatehpur Police Station on the allegation that the same was being carried for black marketing . An inspection was also made of the shop of the petitioner on the next date and thereafter the Block Supply Officer filed a criminal case being Fatehpur P.S. Case No. 99/2012 dated 20.4.2012 against the petitioner and another person. The petitioner surrendered in the court and his prayer for bail having been rejected, he was taken into custody. He was subsequently, released on bail by order dated 15.10.2012 of this 3 Patna High Court CWJC No.10420 of 2012 (4) dt.03-09-2013 Court in Cr.Misc. No. 38152/2012. In the meantime a show cause notice dated

16.7.2012 was issued to the petitioner referring to the filing of FIR against him and directing him to file his explanation within three days as to why his licence should not be cancelled on the charge of black marketing of food grains in terms of the Public Distribution System (Control) order, 2011 (sic). It is admitted in the supplementary counter affidavit filed on behalf of the respondents that the show cause dated 16.7.2012 could not be served upon the petitioner as the petitioner was in jail at the relevant time. However, by the impugned order dated 6.9.2012 the Sub-Divisional Officer, Gaya cancelled the licence of the petitioner and issued consequential directions also to the Block Supply Officer. Learned counsel for the petitioner submits that the cancellation of the licence of the petitioner is in violation of the principles of natural justice and thus it is fit to be quashed. It is further submitted by learned counsel that once the cancellation order is quashed then the respondents should also be directed to continue allocation to the fair price shop of the petitioner. It is submitted by him that under Clause 7 (vi), (vii) and (viii) of the Bihar Fair Price Shop Order, 2007, the respondents have no authority to discontinue the allocation until and unless the licence of PDS dealer is cancelled. Learned counsel for the State, in view of the statements made in the counter affidavit, is unable to defend the cancellation order since clearly there has been non-compliance of the principles of natural justice. He however, submits that the respondents may be given liberty to proceed afresh in the matter 4 Patna High Court CWJC No.10420 of 2012 (4) dt.03-09-2013 of cancellation. So far as the cancellation order is concerned, admittedly, it has been passed in violation of the principles of natural justice and, as a matter of fact, Clause 7(ii) of the Bihar Fair Price Shop Order, 2007 also clearly provides that no order of cancellation shall be made unless the licencee has been given reasonable opportunity for stating its case against the proposed cancellation. Mere sending of the show cause notice once or more can be of no avail to the respondents as it is their duty to ensure that the show cause notice for proposed cancellation was duly served upon the licencee, more so in a case when the licencee was behind the bars. The cancellation order thus is clearly in violation of the principles of natural justice as the petitioner had no opportunity, what to talk of reasonable opportunity, for defending himself the cancellation proceedings. The order dated 6.9.2012 cancelling the licence of the petitioner is, accordingly, quashed. Once the cancellation order is set aside then in terms of Clause 7 (vi), the respondents would be obliged to continue making allocation to the fair price shop of the petitioner as there is no provision after the 2011 amendment made to the Bihar Fair Price Shop Order for suspension of licence and it is clearly provided under the said Clause that allocation of PDS dealer shall not be discontinued under any circumstance. The respondents are, therefore, directed to continue allocation to the fair price shop of the petitioner. The writ application is, accordingly, allowed. However, it shall be open to the respondents to proceed afresh in the matter after issuing a proper show cause 5 Patna High Court CWJC No.10420 of 2012 (4) dt.03-09-2013 notice to the petitioner stating the charges on which it is proposed to cancel the licence and thereafter proceed in the matter in accordance with law. S.Pandey/- (Ramesh Kumar Datta, J)