Triloki Nath Nirala v. The State Of Bihar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.6628 of 2023 ====================================================== Triloki Nath Nirala, aged about 39 years, Male, Son of Baiju Ray, Resident of Village- Bathnaha Madhopur, P.O.- Anjana Kot, P.S.- Motipur, DistrictMuzaffarpur. ... ... Petitioner/s
Versus
1.
The State of Bihar through the Principal Secretary, Food and Consumer Protection Department, Old Secretariat, Government of Bihar, Patna. 2.
The Secretary, Food and Consumer Protection Department, Old Secretariat, Patna.
3.
The District Magistrate, Muzaffarpur.
4.
The Sub-Divisional Officer (West), Muzaffarpur. 5.
The District Supply Officer, Muzaffarpur.
6.
The Block Supply Officer, Meenapur, Muzaffarpur. 7.
The Additional sub-Divisional Officer (West), Muzaffarpur. ... ... Respondent/s ====================================================== Appearance :
For the Petitioner/s :
Mr. Sunil Kumar Pandey, Adv.
For the Respondent/s :
Mr. Arvind Ujjwal, SC-4.
====================================================== CORAM: HONOURABLE MR. JUSTICE A. ABHISHEK REDDY ORAL ORDER 22-01-2024 Heard learned counsel for the parties.
2. The present Writ Petition has been filled for the following reliefs:- "(i) To issue an appropriate order/s, direction/s including a writ preferably in the nature of CERTIORARI to quash the order dated 20.02.2023 passed in P.D.S. Revision Case No.178/2022 passed by learned Divisional Commissioner, Tirhut Division, Muzaffarpur whereby and whereunder he has dismissed the said revision and held that there is no interference is required in the order passed by the learned lower court.
(ii) To quash the order dated
2/5 15.07.2022 passed in Supply Appeal Case No.57/ 2021-22 passed by the District Magistrate, Muzaffarpur whereby and whereunder he has also dismissed the Appeal and directed the petitioner to file case before the competent court if aggrieved with the order.
(iii) To quash the order dated 07.08.2020 as contained in memo No.1063 passed by the learned Sub-Divisional Officer (West), Muzaffarpur whereby and whereunder he has cancelled the fair price shop licence of the petitioner bearing Licence No. 23020097/2016 in violation of the terms and conditions of licence under Bihar Targetted Public Distribution System (Control) order 2016.
(iv) To direct the Sub-divisional Officer (West), Muzaffarpur to restore the fair price shop licence above hence forthwith."
3. Learned counsel appearing on behalf of the petitioner has stated that the Sub-Divisional Officer while issuing the show cause notice to the petitioner has not enclosed the enquiry report.
4. Further learned counsel has relied on the judgment of this Hon'ble Court in CWJC No. 253 of 2014 dated 11.03.2015 wherein this Hon'ble Court has held that the nonsupply of the enquiry report along with the show-cause is bad in law and against the principle of natural justice and equity.
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 the matter remanded back to the authorities concerned for furnishing a
3/5 copy of the enquiry report and any other material that they seek to rely on and give an opportunity of filing his explanation 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 an alternative and efficacious remedy of filing an appeal before the District Magistrate, Learned counsel has therefore prayed this Hon'ble Court to dismiss the present writ petition.
7. This Court in CWJC No. 253 of 2014 dated 11.03.2015 held as under:
"In my opinion, irregularities in maintenance of notice board or maintenance of the stocks within the premises of the petitioner are too trivial and cannot form a basis for cancellation of licence. No doubt there were other serious charges against the petitioner regarding non-issuance of cash-memo to the consumers, distribution of lesser amount of kerosene oil and non-distribution of food-grains but surprisingly even while making such allegations, the names of such consumers who are dissatisfied by such action of the petitioner are conspicuously missing. The allegations are sweeping in nature without reference to any specific consumer.
In my opinion the non-supply of the enquiry report conducted by the District Level Committee which is the foundation for issuance of show cause notice placed at Annexure-1 as well as non-supply of names of such of the consumers who had complained against the petitioner as regarding the irregularities in
4/5 distribution of the food-grains or the kerosene oil has prejudiced the petitioner to file his purposeful reply and in absence thereof, the order impugned in my opinion, are based on no materials.
Though it was strenuously argued by Mr. Pandey that in absence of any response by the petitioner the allegations would be deemed to have been admitted but in my opinion even if the show cause reply was missing, the orders passed by the statutory authorities having civil consequences and resulting in cancellation should reflect application of mind. Unfortunately it is grossly missing inasmuch as neither the order of the Licensing Authority nor the order of the appellate authority deal with the materials which formed the basis to drive home the charges. The orders impugned are indefensible and cannot be upheld."
8. A perusal of the show-cause notice issued to the petitioner does not reveal that the copy of the enquiry report was enclosed along with the show-cause notice.
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 dated 20.02.2023 passed by the Divisional Commissioner, Tirhut Division, Muzaffarpur, the order dated 15.07.2022 passed by the District Magistrate, Muzaffarpur and the order dated 07.08.2020 passed by the SubDivisional Officer (West), Muzaffarpur are set aside. The matter is remanded back to the Sub-Divisional Officer (West), Muzaffarpur for furnishing a copy of the enquiry report and any other material relied on the petitioner and call for his
5/5 explanation by giving 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 order, 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, the present Writ Petition is allowed to the extent indicated above. (A. Abhishek Reddy , J) shakir/- U