Patna High Court
Onkarmal Satyanarain vs State Of Bihar And Ors. on 26 May, 1976
Equivalent citations: 1977CRILJ39
JUDGMENT K.B.N. Singh, C.J.
1. In this writ application the petitioner has prayed for quashing the show cause notice dated the 25th January, 1975 (Annexure '3') against cancellation of the wholesale kerosene dealers' licence, the order of suspension of supply of kerosene quota dated the 25th January, 1975, (Annexure '4'), of the District Supply Officer, Madhubani, as also the order of the District Magistrate, Madhubani, dated the 13th July, 1975, a copy of which has been filed as Annexure '7', along with the supplementary affidavit, suspending the licence of the petitioner till the decision of the Phulparas Police Station Case No. 16 (6) 1973, on the following averments made in the writ application.
2. The petitioner is a registered firm and holds a wholesale kerosene dealers licence, No. 32 of 1963, under the Bihar Kerosene Dealers' Licensing Order, 1965, (hereinafter referred to as the Licensing Order). The petitioner's case is that the District Supply Officer, Madhubani, on the 25th January, 1975, issued a notice to the petitioner to show cause as to why its wholesale Kerosene dealers' licence be not cancelled on account of the lodgment of a case, being Phulparaa Police Station Case No. 16 (6) 1973 (Annexure '3'). On the same date, Respondent No. 3 also issued an order (Annexure '4') in pursuance of an order of the District Magistrate of Madhubani, dated the 10th January, 1975, suspending the supply of the quota of Kerosene oil to the petitioner. The petitioner has stated that Phulparas Police Station Case No. 16 (6) 1973 was registered at Phulparas Police Station under Section 7 of the Essential Commodities Act on an alleged report of one Amol Jha, alleging that on the 26th June, 1973, at 12 noon, some worker of the Sangharsh Samiti informed him that 5 tins of kerosene oil of (aic) black-market was being kept at the place of Chandrakant Thakur Sonar by some person of Tamoria. It was alleged that the informant gave this information in writing to the Officer-in-charge of Phulparas Police Station, as well as the Inspector of Jainagar, who were then sitting at Ghoghardiha Station. Both these officers went to the place of occurrence and there they found one Fulchand Kamat, the alleged purchaser of the aforesaid five tins of Kerosene oil, who, on interrogation, allegedly, informed them that he had purchased the aforesaid five tins of Kerosene oil at the rate of Rs. 18/- per tin from the petitioner. At the time of the purchase, another kerosene dealer, Kedar Jha was also alleged to have been present. A copy of the written report of Amol Jha has been contained in Annexure '1', On the basis of the aforesaid report, the police registered the aforesaid case under Section 7 of the Essential Commodities Act, and later submitted a charge-sheet on the 30th June, 1974.
3. The aforesaid Fulchand Kamat and the petitioner, who were made accused in the case, filed applications before this Court for quashing the prosecutions, which were registered as Criminal Misi-cellaneous Case No. 1984 of 1974, and No. 361 of 1975. These two cases were admitted on the 9th August, 1974, and the 12th February, 1975, respectively, and further proceedings in the court below were stayed.
4. On the 29th June, 1973, on his release on bail, Fulchand Kamat, filed a complaint before the Sub-divisional Magistrate, Jhanjharpur at Madhubani, alleging that on the 26th June, 1973, the aforesaid Kedar Jha had sold one tin of Kerosene oil to him at the rate of Rupees 18/-, which was kept by him at the place of Chandrakant Thakur, and it was Kedar Jha himself, who had kept the other tins of Kerosene oil at the place of Chandrakant Thakur, and Fulchand was coerced by Kedar Jha to state that he had purchased the aforesaid five tins of Kerosene oil from the petitioner. A copy of the aforesaid complaint has been filed as Annexure '2'. The petitioner has averred that there is no allegation as to what had occasioned the sale of the aforesaid five tins of kerosene oil. Notwithstanding the fact that a prosecution has been launched against the petitioner under Section 7 of the Essential Commodities Act by the Police, Respondent No. 3 issued a show cause notice against cancellation of the licence of the petitioner (Annexure '3'). Respondent No. 3 also passed an order (Annexure '4') in pursuance of an order of the District Magistrate dated the 10th January, 1975, suspending the supply of Kerosene quota to the petitioner. The petitioner moved the Divisional Commissioner against the order of the District Magistrate, Madhubani, dated the 10th January, 1975, suspending the supply of Kerosene quota of the petitioner, but the learned Commissioner refused to entertain the petitioner's prayer on the ground that it was premature, and, thereafter on the 11th February, 1975, the petitioner filed a writ application before this Court, being Civil Writ Jurisdiction Case No. 466 of 1975, challenging the show cause notice and the order of the District Magistrate dated the 10th January, 1975, suspending the supply of kerosene oil quota of the petitioner as contained in Annexures '3' and '4', which was placed before a Bench of this Court on the 13th February, 1975, and the following orders were passed:
Having heard learned Counsel appearing for the petitioner, we are not inclined to interfere with the impugned order at this stage. We may, however, observe that the authority concerned will consider the show cause filed by the petitioner relating to the cancellation of its licence and pass appropriate orders without any delay. Learned Counsel for the petitioner has urged before us that the-only ground for the proceeding for the cancellation of the licence is pending (pendency) of a criminal case against the petitioner. But the criminal case has been stayed by order of this Court The authority concerned will consider this aspect of the matter while dealing with the show cause filed by the petitioner.
With these observations, this applition is permitted to be withdrawn, as prayed for.
Sd/- S.N.P. Singh Sd/- S.K. Jha.
In accordance with the aforesaid observations of this Court, the petitioner filed a show cause application before the District Magistrate, stating that the proceedings in Fulparas police Station case No. 16 (6)/73 has been stayed by this Court and the orders contained in Annexures '3' and '4' might be recalled. A certified copy of the aforesaid order of this Court was also placed before the District Magistrate. But, in spite of the observations of this Court, the show cause was not accepted and the petitioner's licence has been suspended till the pendency of the aforesaid criminal case, by an order dated the 13th July, 1975. The substance of this order was communicated to the petitioner by Respondent No. 3 by Annexure '6', and a copy of the said order, which was obtained subsequently, has been filed as Annexure '7' with the supplementary affidavit.
5. The facts stated in the writ application have not been controverted on behalf of the State by filing any counter-affidavit.
6. Dr. Singhabi, learned Counsel appearing on behalf of the petitioner, has urged that the petitioner has been made an accused on an oral statement of one Fulchand Kamat, who has filed a written complaint (Annexure '2'), completely denying the truth of the oral statement imputed to him, on the basis of which the petitioner has been made an accused in the criminal case under Section 7 of the Essential Commodities Act. Learned Counsel has urged that mere pendency of a criminal case for contravention of Section 7 of the Essential Commodities Act could be no ground for the suspension of the petitioner's licence under Clause 8 of the Licensing Order. I think, there is substance in this submission of the learned Counsel.
7. Clause 8 of the Licensing Order may usefully be quoted:
(1) No holder of a licence issued under this Order shall contravene any of the provisions of this Order or any condition of the licence or any direction issued thereunder, and, if he does so, then without prejudice to any other action that may be taken against him, his licence may be cancelled or suspended by order in writing of licensing authority:
Provided that no order shall be made under this clause unless the licencee had been given a reasonable opportunity of stating his case against the proposed cancellation or suspension.
(2) The State Government may without giving any previous notice and without assigning any reasons suspend or cancel any licence issued under this Order.
It is thus manifest that it is only under three grounds, namely, contravention of (i) any provision of this Order, (ii) any condition of the licence, or (iii) any direction issued thereunder, that the Licensing Authority may cancel or suspend a licence, after giving opportunity to the licencee to show cause, by an order in writing. It is not disputed on behalf of the State by learned Standing Counsel that the suspension is on the ground of the pendency of the criminal trial against the petitioner, and the pendency of the criminal case would not amount to breach of condition No. 3 of the licence, which reads thus:
The licensee shall not carry on business in or store kerosene except in the premises specified in his licence, provided that the premises may be changed or additional premises used with the permission of the Licensing Authority.
The allegation against the petitioner is for sale of five tins of kerosene oil at the rate of Rs. 18/- per tin, without mentioning as to what was the controlled price of kerosene oil, if there was any. Therefore, the pendency of the Criminal case will not come under the purview of condition No. 3 of the licence. It is, therefore, manifest that suspension of the petitioner's licence is on a ground foreign to what is contained in Clause 8 of the Licensing Order. Even the provisions of Clause 8 of the Bihar Foodgrains Dealers' Licensing Order, 1967, which provide for cancellation of a licence in the event of' conviction in respect of contravention of any Order made under the Essential Commodities Act relating to foodgrains, etc., do not provide for suspension of a licence during the pendency of a criminal trial. It also provides that in case the conviction is set aside the order of cancellation of the licence will be set aside and the Licensing Authority will reissue the licence.
8. It seems, the District Magistrate has not assigned any reason in justification of his order, excepting the opinion of the Public Prosecutor, in rejecting the show cause filed by the petitioner, which could not be a legal basis for the order, A licence could not be suspended on a ground which could not be supported with reference to the Essential Commodities Act or the Licensing Order.
9. Le rned Standing Counsel has submitted that the petitioner has an alternative remedy by way of appeal before the Divisional Commissioner, which it has not availed and the writ application should be dismissed on this ground alone. In view of the earlier observations of this Court in Civil Writ Jurisdiction Case No. 466 of 1975, and, in view of the fact that this application has been admitted, and the impugned order obviously is not in conformity with the provisions of Clause 8 of the Licensing Order, this writ application cannot be dismissed on the ground of there being an alternative remedy. The view I have taken gains support from Bench decisions of this Court in the case of Messrs. Richpal Birmadutta v. State of Bihar 1971 Pat LJR 420, and in the case of Sita Oil and Flour Mills v. State of Bihar .
10. I am, therefore, satisfied that in absence of a prima facie allegation in terms of Clause 8 of the Licensing Order, the licence of the petitioner could not be suspended on the. theory of a new crime concept enunciated by the District Magistrate. The writ application is accordingly allowed and the order of the District Magistrate contained in Annexure '7' is quashed. The order suspending supply of the quota of keresone oil to the petitioner passed by the District Magistrate on the 10th January, 1975, as cowanuni cated to the petitioner by Annexure '4', is also quashed. In the circumstances of the case there will be no order as to costs S.K. Choudhuri, J.
11. I agree.