Allowed

Shankar Ram v. the State of Bihar and Ors.

Patna HC19 Jun 2013CWJC/8827/2012

Case brief

AI extract

What is this about?

Petitioner challenged the cancellation of his Fair Price Shop licence by the Sub-divisional Officer. The Court held that since the authority had already suspended the licence, it lacked jurisdiction to cancel it. Consequently, the writ was allowed despite the existence of an alternative statutory remedy.

What did the court decide?

Impugned order dated 28.2.2011 cancelling the petitioner's licence is quashed.

Shankar Ram Vs the State of Bihar and Ors. — Patna HC (2013) — LawSathi Research

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8827 of 2012

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====================================================== 1. Shankar Ram S/O Late Denu Ram Resident Of Village - Seikhpur Dish, P.S. Manjha, District - Gopalganj .... .... Petitioner Versus 1. The State Of Bihar 2. The Block Supply Officer, Manjha Block, Gopalganj 3. The Sub Divisional Officer, Gopalganj .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Vijay Anand For the Respondent/s : Mr. Shashi Bhushan Kr. S.C.7 Mr. Kumar Pankaj, A.C. to S.C.7 ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA ORAL ORDER 6 19-06-2013 Learned counsel for the petitioner is permitted to correct the licence number stated in paragraph No.3 of the writ petition as 48 of 2007 instead of 40 of 2010 as stated therein, which fact is borne out by the number mentioned in the impugned order dated 28.2.2011, in the course of the day. Heard learned counsel for the petitioner and learned counsel for the State.

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The petitioner has come to this Court for quashing the order dated 28.2.2011 passed by the Sub-divisional Officer, Gopalganj in Supply Case No.40 of 2010.

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The petitioner was holding a licence under the Public Distribution System for a Fair Price Shop. On account of his

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Patna High Court CWJC No.8827 of 2012 (6) dt.19-06-2013

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ailment, he applied for and was granted leave for a period of three months from 6.9.2010 to 5.12.2010. However, even after the expiry of the leave period, the petitioner did not reopen his Fair Price Shop.

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It is the stand of the respondents that after issuing show cause notice to the petitioner, the licence of the petitioner was suspended by order dated 31.1.2011 of the S.D.O., Gopalganj and a fresh show cause was asked as to why his licence should not be cancelled. The petitioner not having replied to the said show cause, the impugned order dated 28.2.2011 was passed cancelling his licence.

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According to the petitioner no show cause was ever served upon him since the petitioner was not available at his residence as he had gone outside for the purpose of treatment.

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The main ground argued by learned counsel for the petitioner is that under the Fair Price Shop Order, 2007 issued by the Government of Bihar in exercise of power conferred under Section 3 of the Essential Commodities Act, 1955 and Clause 7 of the Public Distribution System (Control) Order, 2001, the authorities can either suspend or cancel the licence for contravention of any terms and provisions of the licence or duties and responsibilities but having imposed the punishment of

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Patna High Court CWJC No.8827 of 2012 (6) dt.19-06-2013

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suspension of licence, it was not open to the licensing authority to cancel the licence.

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In support of his aforesaid contention, learned counsel for the petitioner has relied upon a decision dated 4.2.2013 of this Court in L.P.A. No.15 of 2011: Shiv Chandra Jha vs. Harideo Jha and others, in which it has been held as follows:-

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“We have no reason to differ from the aforesaid view consistently taken by this Court. In our opinion, the learned single Judge has rightly held that once the licence was suspended by the licensing authority, it was divested of its power to cancel the licence.”

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Learned counsel for the State, on the other hand, submits that the impugned order is an appealable order and the petitioner should be relegated to avail of his alternative statutory remedy of appeal instead of pursuing the matter under the writ jurisdiction of this Court.

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However, learned counsel for the State is unable to show how the impugned order dated 28.2.2011 could have been passed by the licensing authority in view of the law consistently laid down by this Court and reiterated in the aforesaid order dated 4.2.2013.

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In my view, the existence of alternative statutory remedy

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Patna High Court CWJC No.8827 of 2012 (6) dt.19-06-2013

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does not absolutely bar the jurisdiction of this Court as it is a matter of discretion of this Court. If the order is itself without jurisdiction, then in such circumstances, the petitioner should not be relegated to his statutory remedy. Evidently, the order dated 28.2.2011 could not have been passed by the licensing authority cancelling the licence of the petitioner after he had earlier passed an order suspending the licence of the petitioner.The order is, thus, clearly without jurisdiction.

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In the said situation, this Court does not consider it fit to dismiss the writ petition on the ground of existence of alternative statutory remedy.

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The writ application is, accordingly, allowed. The impugned order dated 28.2.2011 passed by the Sub-divisional Officer, Gopalganj in Supply Case No. 40 of 2010 is quashed.

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(Ramesh Kumar Datta, J)

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V.P.Sinha/-

Shankar Ram v. the State of Bihar and Ors.

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Shankar Ram v. the State of Bihar and Ors.

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