Jharkhand High Court
Sunil Kumar Son Of Bhola Jaiswara vs The State Of Jharkhand on 1 May, 2018
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C). No.2911 of 2012
Sunil Kumar Son of Bhola Jaiswara, resident of Baniaheer No.4,
P.O.- Bhaga, P.S.- Jharia, District- Dhanbad... ... Petitioner
Versus
1. The State of Jharkhand
2. The Deputy Commissioner, Dhanbad, P.O. and P.S.-
Dhanbad, District- Dhanbad.
3. Sub-Divisional Officer cum Licensing Officer, Dhanbad, P.O.
and P.S.- Dhanbad, District- Dhanbad... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioners : Mr. Arun Kumar, Advocate For the Respondents : Mr. D.K. Dubey, Sr. S.C.-I
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04/01.05.2018 Heard Mr. Arun Kumar, counsel appearing on behalf of the petitioner.
2. Heard Mr. D.K. Dubey, Sr. S.C.-I appearing on behalf of the respondents.
3. This writ petition has been filed for the following reliefs:-
"For a direction to set aside the Memo No.06 dated 10.01.2011 issued by the Sub Divisional Officer cum Licensing Authority, Dhanbad by which he has cancelled the fair Price Shop Licence of the Petitioner i.e. Licence No.7/JHR/2002 on the ground that as per his thinking Petitioner lost his interest to run the shop and also on the ground that Petitioner has violated the order by not submitting Show Cause Reply;
And Petitioner further pray for issuance of appropriate direction to set aside the Appellate order dated 21-10-2011 passed by the Collector, Dhanbad in T.A.L.A. Case No.02/2011 whereby and whereunder Appellate Authority without considering the fact that Petitioner after releasing from Jail Custody on 10-05-2010 immediately has given show cause reply on 15-05-2010, dismissed the appeal filed by the petitioner."2
4. Counsel for the petitioner submits that the petitioner was having Fair Price License vide license No.7/JHR/2002 to run fair price shop at Baniaheer No.4 P.O. Bhaga, P.S.- Jharia, District - Dhanbad. One criminal case was lodged against the petitioner in connection with alleged stealing of Motor Cycle on 01-10-2009 which was numbered as Jharia P.S. Case No.266/09 and the petitioner was taken into custody on 02.10.2009. Upon coming to know about this fact the Sub-Divisional Officer-cum- Licensing authority issued letter as contained in Memo No.396 dated 05.10.2009 wherein alternative arrangement was made in connection with distribution of commodities as the petitioner was in Jail Custody and simultaneously by this Memo dated 05.10.2009 a show-cause notice was issued to the petitioner as to why the license of Public Distribution System be not cancelled. The petitioner submits that the petitioner was in jail custody during the period from 02.10.2009 to 10.05.2010 and immediately after his release the petitioner vide show-cause reply dated 15.05.2010 submitted that the petitioner has been implicated in a false case and the petitioner on 15.05.2010 was suffering from jaundice. He submits that this show-cause reply dated 15.05.2010 was sent under the certificate of posting and thereafter the petitioner made repeated request to recall the order of suspension and for consideration of his show cause reply which were sent under certificate of posting on various dates. However, the licensing authority vide Memo No.6 dated 10.01.2011 recorded that the petitioner has not filed any show- cause reply and cancelled the Public Distribution System license of the petitioner against which the petitioner filed appeal before the appellate authority which was numbered as T.A.L.A. Case No.2 of 2011. The appeal filed by the petitioner was again rejected on the ground that the show-cause reply was filed by the petitioner after 11 months of his release from jail custody 3 and also that the medical certificate which was filed by the petitioner was doubtful.
5. Counsel for the petitioner submits that the entire proceeding initiated against the petitioner for cancellation of his license is itself misconceived in view of the fact that merely because the petitioner was alleged to have committed some offence of theft of motor cycle which is admittedly not related to Public Distribution System and was taken into jail custody cannot be a ground for cancellation of license. However, so far as suspension of license is concerned the petitioner could not dispute that if a person is taken into jail custody then alternative arrangement are required to be made by the authority concerned. The petitioner submits that on the date order for cancellation of license was passed i.e., on 10.01.2011 the show- cause reply was already filed by the petitioner under certificate of posting which has not been considered by licensing authority while passing the impugned order dated 10.01.2011 by recording that no show-cause reply has been filed by the petitioner. The counsel submits that it has been recorded in the order of the appellate authority that the show-cause reply was filed after seven months from the release of jail custody is itself not correct and is error of record and so far as medical certificate which was filed by the petitioner alongwith the show-cause reply is concerned the same could not have been disputed by the authorities. He further submits that even in absence of any medical certificate the licence of the petitioner could not have been cancelled as the allegations levelled were totally unconnected with the work of public distribution system.
6. Counsel for the respondents on the other hand while referring to the counter-affidavit referred to para-7 of the counter-affidavit that the show-cause reply purported to have been sent by the petitioner was sent after seven months from the date of release under bail from the custody and accordingly 4 the counsel for the respondents submits that there is no merit in the writ petition and therefore the same should be dismissed.
7. After hearing the counsel for the parties and after considering the facts and materials on record, this Court finds that vide show-cause notice dated 05.10.2009 two actions were taken, one was related to suspension of license on account of the fact that the petitioner has been taken into jail custody and the other was the show-cause for cancellation of license.
8. So far as the suspension of license is concerned the said order has been rightly passed on account of the fact that the petitioner was taken into custody and alternative arrangement was required to be made in connection of Public Distribution System.
9. However, so far as the show-cause notice for cancellation of license is concerned, from the perusal of the show-cause notice it appears that the only reason which appears is that the petitioner has been taken into custody in connection with one criminal case of theft. From the records of the case, it appears that the criminal case of theft which was lodged against the petitioner had nothing to do with Public Distribution System and the allegation was in connection with theft of one Motor Cycle.
10. This Court is of the considered view that merely because a case of theft was registered against the petitioner in connection with theft of one Motor Cycle which has nothing to do with Public Distribution System and more so in view of the fact that it was at the stage of First Information Report itself.
11. This court finds that the show-cause notice dated 05.10.2009 was itself misconceived and the license of the petitioner could not have been cancelled merely on the ground that one First Information Report has been filed against the petitioner which admittedly has nothing to do with the Public Distribution System.
512. This court finds that this aspect of the matter has neither been properly considered by the authority who has cancelled the licence of the petitioner nor considered by the appellate authority. Accordingly the impugned orders are perverse and fit to be set-aside to the extent it relates to cancellation of licence of the petitioner.
13. Considering this aspect of the matter the entire proceeding to the extent it relates to cancellation of license initiated against the petitioner vide Memo dated 05.10.2009 including the final order dated 10.01.2011 as well as the appellate order dated 21.10.2011 are hereby set-aside.
14. The writ petition is allowed.
(Anubha Rawat Choudhary, J.) Saurav/AFR