Patna High Court
Shiv Chandra Jha vs Harideo Jha & Ors on 4 February, 2013
Equivalent citations: AIR 2013 PATNA 74
Author: R.M. Doshit
Bench: Chief Justice, Ahsanuddin Amanullah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.15 of 2011
In
Civil Writ Jurisdiction Case No. 16552 of 2009
With
Interlocutory Application No.101 of 2011
In
Letters Patent Appeal No.15 of 2011
===========================================================
Shiv Chandra Jha, S/o Late Kapileshwar Jha, Resident of Vill. Sugauna, P.S.-Raj Nagar, District-Madhubani.
.... .... Appellant/Intervener
Versus
1. Harideo Jha, S/o Shri Baidhyanath Jha, Resident of Vill.: Sugauna Utari, P.S. Raj Nagar, District, Madhubani.
.... .... Petitioner-Respondents
2. The State of Bihar.
3. The Collector, Madhubani.
4. The Sub Divisional Officer, Madhubani.
5. The Block Supply Officer, Raj Nagar, Madhubani.
.... .... Respondents-Respondent =========================================================== Appearance :
For the Appellant : Mr. S.D.Sanjay, AAG-12 Mr. Gautam Kejriwal, Advocate Mr. Akash Chaturvedi, Advocate Mr. Hemant Kumar Jha, Advocate For the Respondent No.1 : Mr. Jitendra Singh, Senior Advocate Mr. Shankar Kumar Thakur, Advocate For the Respondent State: Mr. Anjani Kumar, AAG-10 Mr. Sanjeev Kumar, A.C. to AAG-10 =========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH 2 Patna High Court LPA No.15 of 2011 dt. 04.02-2013 2 / 11 C.A.V. JUDGMENT Date : 4th February 2013.
(Per: HONOURABLE THE CHIEF JUSTICE) Interlocutory Application No. 101 of 2011:
The delay of 10 days occurred in filing the Letters Patent Appeal is condoned.
Interlocutory Application stands disposed of. Letters Patent Appeal No. 15 of 2011:
Feeling aggrieved by the common judgment and order dated 8th November 2010 passed by the learned single Judge insofar as C.W.J.C. No.16552 of 2009 is allowed, the intervener has preferred this Appeal under Clause 10 of the Letters Patent.
We may at the outset record that an intervener may, with permission of the Court, contest the proceeding filed before this Court. However, the only right of the intervener is that of hearing in opposition, if permitted. The intervener has no right to relief in the proceeding; nor the intervener has a right to prefer appeal. In the present case, although the appellant had, pending C.W.J.C. No.16552 of 2009, filed Interlocutory Application No.8154 of 2010 for permission to intervene in the proceeding, the said application was not allowed. Thus, the appellant had not been given permission to contest the proceeding before the learned single Judge. We are, therefore, of the opinion that the present Appeal by the intervener is not maintainable. We may also note that the respondent State Government has not challenged the impugned judgment and order in appeal.
Nevertheless, as we have heard the matter at length, the matter at issue being of considerable importance, we
3 Patna High Court LPA No.15 of 2011 dt. 04.02-2013 3 / 11 decide the same on merits.
The respondent no.1, the petitioner, was granted licence under the Public Distribution System to run a fair price shop at Village-Sagauna Utari, P.S.-Rajnagar, District- Madhubani. Pursuant to several complaints received against the petitioner, some from the present appellant also, on 2 nd May 2008, the Sub-Divisional Officer, Sadar, Madhubani issued a notice upon the petitioner calling upon him to explain the complaints received against him and to show cause why his licence should not be suspended or cancelled. The said notice was replied to by the petitioner (date is not disclosed). In the meantime, under order dated 10th June 2008, the licence of the petitioner was suspended (copy has not been brought on record). On receipt of the said reply the Sub-Divisional Officer, Sadar, Madhubani, on 2nd September 2008, informed the petitioner that his explanation was not acceptable and to show cause why for the alleged irregularities his licence should not be cancelled. The said notice too was replied by the petitioner. After receipt of the said reply, under order dated 6th September 2008, the licence to run the fair price shop granted to the petitioner was cancelled. The said order was challenged by the petitioner before the Collector, Madhubani in Appeal No.66/08-09. The Collector, Madhubani dismissed the said appeal on 21st July 2009. Therefore, the writ Petition.
According to the petitioner, the complaints made against him were uncalled for. The complaints were made by the appellant or at the instigation of the appellant on account of business rivalry, for ulterior purpose. Further, the petitioner having been subjected to punishment of suspension of licence, he 4 Patna High Court LPA No.15 of 2011 dt. 04.02-2013 4 / 11 cannot be made to suffer the punishment of cancellation also for the same set of alleged breach of terms and conditions of licence.
The writ petition has been allowed by the learned single Judge on the sole ground that the licence once was suspended, the licensing authority had no power to cancel the same. The learned single Judge relied upon the Bihar Trade Article (Licences Unification) Order, 1984 (hereinafter referred to as "the 1984 Order") and on the Central Government Public Distribution System (Control) Order, 2001 (hereinafter referred to as "the 2001 Order"). The learned single Judge has also relied upon the judgment of this Court in the matter of Pradhuman Chaudhary v. The State of Bihar & Ors. (C.W.J.C. No.6966 of 2008 decided on 14th July 2010).
Feeling aggrieved, the complainant-intervener has preferred this Appeal. The State Government has filed counter affidavit to say that suspension of licence was not a punishment; to state that the Licence No.8 of 92 granted to the petitioner under the 1984 Order was cancelled and a new Licence No.439 of 2007 was granted under the Fair Price Shop Order, 2007. The State Government has denied that the suspension or cancellation of licence are two independent action. The suspension of a licence can be a prelude to cancellation. In the present case, it was indeed a suspension pending the proceeding.
We may reiterate here that the order of suspension of licence made on 10th June 2008 has not been brought on record by the petitioner to buttress the contention that it was an order of punishment and not an interim measure; nor by the State Government to buttress the contention that it was an order of suspension pending the proceeding for cancellation of licence. In 5 Patna High Court LPA No.15 of 2011 dt. 04.02-2013 5 / 11 any view of the matter, as we shall discuss hereafter the 2007 Order does not contemplate suspension of licence pending the proceeding or in contemplation of the proceeding for cancellation of licence.
Learned Additional Advocate General Mr. S.D. Sanjay has appeared for the appellant. He has taken us through the record, the 1984 Order, the 2001 Order and the Fair Price Shop Order, 2007 (hereinafter referred to as "the 2007 Order") issued by the Government of Bihar in exercise of power conferred by Section 3 of the Essential Commodities Act, 1955 (hereinafter referred to as "the Act") and Clause 7 of the 2001 Order issued by the Government of India.
In support of his submissions Mr. Sanjay has relied upon the judgments of the Hon'ble Supreme Court in the matters of M/s. Sukhwinder Pal Bipan Kumar and others v. State of Punjab and others, (A.I.R. 1982 S.C. 65); of Union of India v. Elphinstone Spinning and Weaving Co. Ltd. and Others, {(2001) 4 SCC 139}; of People's Union for Civil Liberties v. Union of India and others, {(2007) 1 SCC 719); and of this Court in the matter of M/s Swami Distributors v. State of Bihar, {1990 (1) PLJR 210}.
Learned counsel Mr. Jitendra Singh has appeared for the petitioner. He has submitted that the appellant had made repeated complaints against the petitioner with oblique motive, actuated by business rivalry. He has submitted that it is the 2007 Order which governs the licence for fair price shop. Clause 7(iv) thereof is explicit. The licensing authority, as a punitive measure, either can suspend the licence or cancel the licence. Once, the licence has been suspended, it shall stand revoked after 90 days 6 Patna High Court LPA No.15 of 2011 dt. 04.02-2013 6 / 11 and it cannot be cancelled thereafter. He has submitted that in absence of a specific provision made in the 2007 Order, the concept of suspension pending the investigation, the principle known to the service jurisprudence cannot be brought in. In support of his submissions Mr. Singh has relied upon the judgment of the Hon'ble Supreme Court in the matter of P.R.Nayak v. Union of India, (A.I.R. 1972 S.C. 554); of this Court in the matters of Thakko Choudhary v. The State of Bihar and 3 others, (1971 PLJR 199); and of Universal Drug House Pvt. Ltd. v. State of Bihar & Ors., {2003(3) PLJR 771}.
Learned Additional Advocate General Mr. Anjani Kumar has appeared for the State Government. He concedes that the State Government has not preferred appeal against the impugned judgment and order. He has, however, submitted that the doctrine of election should apply.
Let us first examine the above referred Orders that govern the licence for fair price shop. Prior to the 2001 Order issued by the Government of India, the licences granted under the Act were governed by the 1984 Order issued in exercise of power conferred by Section 3 of the Act. Clause 4 of the said Order provides, inter alia, for issuance of licence. Clause 10 thereof enjoins a holder of licence or his agent or servant or any other person acting on his behalf not to contravene any of the terms and conditions of the licence. Clause 11 thereof provides, inter alia, for cancellation or suspension of licence in case of contravention of any of the terms and conditions of the licence. It provides, "... his licence may be cancelled or suspended with regard to one or more trade articles ...". Sub-clause (2) thereof enjoins the concerned authority to give a reasonable 7 Patna High Court LPA No.15 of 2011 dt. 04.02-2013 7 / 11 opportunity to the licensee against the proposed cancellation. It, however, empowers the authority to suspend the licence for a period not exceeding 90 days, during the pendency or in contemplation of proceeding, without giving any opportunity to the licensee.
The Government of India, in exercise of power conferred by Section 3 of the Act, for maintaining supplies and securing availability and distribution of essential commodities under the public distribution system, issued the 2001 Order. The said Order extends to the whole of India. Clause 14 thereof gives the 2001 Order precedence over anything to the contrary contained in any Order made by the State Government.
Pursuant to paragraph 5 of the annexe to the 2001 Order, as amended by GSR 392(E) dated 29th June 2004, the Government of Bihar has, in exercise of power conferred by Section 3 of the Act, issued Fair Price Shop Order, 2007. Clause 1 thereof provides for termination of the existing licence and issuance of a new licence. It further provides that the 1984 Order will not apply to fair price shops under the public distribution system. Thus, it is apparent that since the issuance of the 2007 Order, the licence for fair price shops are governed by the 2007 Order. Clause 7 thereof provides for suspension and cancellation of licence. Sub-clauses (ii), (iii), (iv) and (v) thereof read as under:
"(ii) If any licensee contravenes the provision, terms of the licence, duties, responsibilities and order of the State Government then the Licensing Authority shall suspend/cancel the licence by a written order.
(iii) If F.I.R. is lodged against FPS dealers for 8 Patna High Court LPA No.15 of 2011 dt. 04.02-2013 8 / 11 contravention of an order issued under Essential Commodities Act, 1955, their licence shall be suspended till the matter is pending before the Court of Law.
(iv) It shall be necessary to ask show cause by the Licensing Authority to licensee before suspending licence.
Licensee will be given a reasonable opportunity stating his case against the proposed cancellation.
(v) Suspension of licence shall be for a maximum period of ninety days. In the meantime records relating to suspension of licence should be sent to the District Level Selection Committee within a fortnight from the date of suspension of licence. The Selection Committee after due enquiry shall recommend for revocation of suspension the Licensing Authority shall act accordingly."
It is apparent that power to suspend or cancel the licence for contravention of the terms of licence under the 2007 Order is similar to the one under Clause 11 of the 1984 Order. Clause 11 of the 1984 Order provides, "... licence may be cancelled or suspended...". Whereas, Clause 7(ii) of the 2007 Order provides, "...Licensing Authority shall suspend/cancel the licence...".
Clause 7(ii) is clear and unambiguous. The preposition "or" used in the said sub-clause is disjunctive and has to be read in the same way. The power to suspend or cancel the licence conferred under the said Clause is clearly a power to impose punishment. The two punishments envisaged are mutually exclusive. It may be a punishment of suspending the licence or of cancelling the licence. It cannot be both.
Although under the 2007 Order power to suspend or 9 Patna High Court LPA No.15 of 2011 dt. 04.02-2013 9 / 11 cancel the licence for contravention of terms and conditions of the licence, the duties and responsibilities is the same as under
1984 Order, under the 2007 Order, in case where First Information Report is lodged, the licensing authority is enjoined to suspend the licence till the matter is pending before the Court of Law. Under Sub-clause (2) of Clause 11 of the 1984 Order, during the pendency or in contemplation of proceeding, the licensing authority is empowered to suspend the licence for maximum period of 90 days without giving opportunity of hearing to the licensee. The 2007 Order does not contemplate suspension of licence pending the proceeding or in contemplation of the proceeding.
In our opinion, the power to suspend or cancel the licence conferred by Sub-clause (ii) of Clause 7 of the 2007 Order is akin to power to cancel or suspend licence under Sub- clause (1) of Clause 11 of the 1984 Order. The 1984 Order has been subject of consideration by this Court time and again. As early as in 1989 in the matter of M/s Swami Distributors v. State of Bihar, {1990 (1) PLJR 210}, a Division Bench of this Court had occasion to consider the provision of the 1984 Order. The Bench held that the power of suspension conferred by Clause 11 of the 1984 Order was akin to one under service jurisprudence;
(i) suspension by way of punishment and (ii) suspension pending enquiry and/or contemplated enquiry. The Court held, "... it provides two kinds of suspension, namely, one under clause 11(1) i.e. suspension by way of punishment, and under clause 11(2), suspension during the pendency or contemplation of a proceeding for cancellation of licence. The second kind of suspension, is an interim suspension with a life of ninety
10 Patna High Court LPA No.15 of 2011 dt. 04.02-2013 10 / 11 days." The aforesaid judgment has been followed consistently and has become settled law.
In the matter of M/s. Sukhwinder Pal Bipan Kumar and others v. State of Punjab and others (supra), a similar licensing Order prevalent in the State of Punjab was under
consideration by the Hon'ble Supreme Court. The Hon'ble Court upheld the legality of second proviso of sub-clause (1) of Clause
11 of that Order that empowered the licensing authority, "to suspend a licence without giving a reasonable opportunity to a licensee of stating his case for a period not exceeding 90 days during the pendency or in contemplation of proceeding for cancellation of his licence."
In the matter of Thakko Choudhary (supra), a Bench of this Court while considering a similar provision under Section 42 of the Bihar and Orissa Excise Act, 1915 held that Section 42 empowers the Collector or the prescribed authority to cancel or to suspend a licence.
Once the authority has decided to suspend the licence by way of punishment under Clause 7(ii) of the 2007 Order, he cannot proceed further to cancel the licence as no one can be punished twice for the same act of misconduct or offence. This construction is fortified by sub-clause (iv) which requires the licensing authority to ask show cause before suspending licence. Sub-clause (v) thereof restricts the power of suspension to a maximum period of 90 days. It may be revoked earlier if the selection committee so recommends.
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 11 Patna High Court LPA No.15 of 2011 dt. 04.02-2013 11 / 11 by the licensing authority, it was divested of its power to cancel the licence.
For the aforesaid reasons, we dismiss this Appeal as not maintainable as well as on merits. Interim order stands vacated.
The appellant will bear the cost of the respondents. Cost to each set of respondents is quantified at Rs.2,500/- (two thousand five hundred). The appellant will pay the amount of cost to each set of respondents within two months from today. In the event, the appellant fails to pay the cost, the District Collector will be at liberty to recover the same as arrears of land revenue.
(R.M. Doshit, CJ) Ahsanuddin Amanullah, J.
I agree.
A.F.R. (Ahsanuddin Amanullah, J) Pawan/-