Ramesh Paswan v. The State Of Bihar And ORS

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.22665 of 2018 ====================================================== Ramesh Paswan, Son of Lalit Paswan, Resident of Village and P.O. Haripur, P.S.- Roser, District- Samastipur.

... ... Petitioner/s

Versus

1.

The State Of Bihar through the Principal Secretary, Food and Consumer Protection Department, Old Secretariat, Patna. 2.

The Collector, Samastipur, District- Samastipur. 3.

The Sub-Divisional Officer, Rosera, District- Samastipur. ... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr. Rajeev Kumar Labh, Advocate.

For the Respondent/s :

Mr. S. Raza Ahmad, AAG-5.

====================================================== CORAM: HONOURABLE MR. JUSTICE A. ABHISHEK REDDY ORAL ORDER 03-11-2023 Heard learned counsel for the parties.

2. The present Writ Petition has been filled for the following reliefs:- "A. For quashing and setting aside the order passed by the Sub- Divisional Officer, Rosera and issued vide Memo No. 276 dated 19/10/2015 whereby and whereunder licence of the petitioner's Fair Price Shop bearing No. 315/07 has been cancelled with immediate effect contained in Annexure 1 and quashing and setting aside the order dated 1/5/2016 passed by the learned Collector, Samastipur in Appeal Case No.- 98/2015 contained in Annexure 4 whereby and whereunder appeal filed by the petitioner against the cancellation order has been rejected.

B. A mandamus commanding the Respondents to restore the petitioner's licence as before and to make allotment for the petitioner's shop."

3. Learned counsel appearing on behalf of the

2/4 petitioner has stated that in the Show Cause Notice issued by the Sub-Divisional Officer there is no proposal for cancellation of the license. Learned counsel has stated that non-mentioning of the proposal for cancelling his license is contrary to the provisions of order 27(ii) of the Bihar Targeted Public Distribution System (Control) Order, 2016 (hereinafter referred to as 'the Order, 2016').

4. Learned counsel for the petitioner has relied on the judgment of the full Bench passed in CWJC No.21202 of 2021 and analogous cases dated 26.09.2023 to buttress his contention that non-mentioning of the proposed action in the show-cause notice is bad in law and contrary to Rule 27(ii) of the Control Order, 2016.

5. Learned counsel has stated in view of the above mentioned provisions of law and judgment relied by the petitioner, the impugned order may be set aside and matter remanded back to the authorities concerned for issuing a fresh show-cause notice in terms of order 27(ii) of the Control Order, 2016 and thereafter take necessary action.

6. Per contra, the learned counsel appearing on behalf of the respondents has vehemently opposed the very maintainability of the writ petition and stated that the present writ petition is not maintainable as the petitioner has exhausted all the remedies and

3/4 all the authorities have found that the petitioner has violated the provisions of the Control Order, 2016. Learned counsel has therefore prayed this Hon'ble Court to dismiss the present writ petition.

7. This Hon'ble Court in CWJC No.21202 of 2021 and analogous cases has held as under:

"19. Accordingly, we answer the reference as under:- It is mandatory for a licensing authority issuing a notice under order 27(ii) to a license to mention that there is a proposal for cancellation of his license, failing which such notice cannot be treated to be a valid notice of giving sufficient opportunity to the licensee to state his case under order 27(ii) of the BTPDS Control Order. "

8. A perusal of the show-cause notice issued to the petitioner does not reveal that there is any proposal of the action sought to be taken against the petitioner. Therefore, the same has to held as bad, illegal, contrary to the provisions of Rule 27(ii) of the Control Order and has to necessarily set aside.

9. Having regard to the above facts and circumstances and the law laid down by this Hon'ble Court, the present CWJC is allowed. The impugned order passed by the Collector, Samastipur dated 01.05.2016 and the order passed by the Sub-Divisional Officer, Rosera, Samastipur dated 19.10.2015 are set aside. The matter is remanded back to the Sub-divisional Officer for issuing a

4/4 fresh show-cause notice to the petitioner strictly in compliance with the provisions of Rule 27(ii) of the Control Order, 2016 and call for his explanation by giving him reasonable time.

10. On such show-cause notice being served, the petitioner shall file his explanation within the stipulated time. On receipt of the explanation submitted by the petitioner the authority concerned shall pass a reasoned order strictly in accordance with law duly taking into consideration the explanation submitted by the petitioner.

11. It is needless to mention that before passing any orders, the petitioner shall be given an opportunity of hearing. The entire exercise shall be completed as expeditiously as possible preferably within a period of eight weeks from the date of receipt of a copy of this order. Any order passed shall be communicated to the petitioner.

12. With the above directions, this Writ Petition is allowed to the extent indicated above.

(A. Abhishek Reddy , J) shakir/- U