IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHUTOSH KUMAR and JITENDRA KUMAR, JJ.
(24.8.2022)
CWJC Nos. 6584 with 7881, 13150 of 2019
M/s Jai Hind Traders Pathardeva
(in 6584)
M/s Uma Kishan Seva Kendra (in 7881)
M/s Bhagat Khad Beej Bhandar
Harira (in 13150) : Petitioners
Vs.
State of Bihar & Ors. : Respondents
(in all)
Government Contract–Debarment–Time for dealers/petitioners to dispose of their stock of fertilizers after order of debarment was not given–Provisions of Section 31 (2) of Control Order has not been carried out in appropriate manner–There is no follow-up/sequel action after debarment of petitioners/dealers–District Agriculture Officer has not followed procedure of debarment and consequent suspension or cancellation of licence–If at all contravention by dealers/petitioners was found to have justified order of debarment, it was only an interim measure before license could be suspended or cancelled, but not without giving to dealers necessary opportunity of representing their cause–Order of debarment set aside. (Paras 11 to 17)
ASHUTOSH KUMAR, J.:–All the three writ petitions, referred to above, have been heard together and are being disposed off by this composite order.
2. Ms. Namrata Mishra, the learned Advocate has assisted this Court on behalf of the petitioner in C.W.J.C. No. 6584 of 2019, whereas Mr. Anjani Kumar Jha, the learned Advocate has argued on behalf of the petitioners in C.W.J.C. Nos. 7881 of 2019 and 13150 of 2019 respectively. Mr. Prabhat Kumar, the learned A.C. to G.A.-11 has represented the State in C.W.J.C. No. 6584 of 2019.
3. Mr. Anjani Kumar Jha, the learned Advocate is permitted to carry out necessary correction in the name of petitioner of C.W.J.C. No. 13150 2019 during the course of the day.
4. In all the three writ petitions, the order of the District Agriculture Officer, Araria has been impugned, whereby the respective petitioners have been debarred from carrying on the business of sale of fertilizer.
5. Though the writ petitioners have raised a grievance that they have not been noticed before passing the aforesaid order of debarment, but the learned counsel for the State has controverted such argument on the basis of a communication made by the District Agriculture Officer, Araria, contained in Annexure-3 to the writ petition bearing C.W.J.C. No. 6584 of 2019, wherein the dealer was made known that during the evaluation by the authorities, it was found that the fertilizer was not being sold by e-POS machine which was a breach of the Fertilizer (Control) Order, 1985 (in short the Control Order), entailing cancellation of license. The dealer/dealers were asked to present themselves along with the machine before the District Agriculture Officer. That not having been done, it has been urged on behalf of the State, the order of debarment has rightly been passed.
6. However, from a perusal of the provisions contained in Section 31 of the Control Order, it appears that the Controller, after giving the authorized dealer an opportunity of being heard, may suspend or debar the dealer for carrying on the business of fertilizer on one or more of the grounds including that the authorization letter or certificate of registration or certificate of manufacture has been obtained by the dealer by willful suppression of material facts or by misrepresentation of relevant particulars or that any one of the provisions of the Control Order or any terms and conditions of the memorandum of intimation or certificate of registration or the certificate of manufacture, as the case may be, has been contravened or not fulfilled.
7. It has further been provided that while debarring a dealer from carrying on the business of fertilizer or cancelling the certificate, he would be allowed a period of thirty days to dispose of the balance stock of fertilizer, if any, held by him. Anything kept back by the dealer beyond the aforenoted period, would be liable to be confiscated.
8. Sub-Clause (2) of Section 31 of the Control Order further provides that if the contravention by the dealer is of such a nature that it justifies his debarment or cancellation, then the Controller may, without any notice, suspend such authorization letter or certificate as an interim measure and shall immediately furnish the details and the nature of contravention to the dealer and after giving him an opportunity of being heard, pass a final order/s either revoking the order of suspension or debarment within fifteen days from the date of issue of the order of suspension. And, if no final order is passed within the period as specified in sub-Clause (2) of Section 31 of the Control Order, the order of interim suspension shall be deemed to have been revoked without prejudice however to any further action which the authority may take against the dealer under sub-clause (1). Thereafter, a brief statement of the reason for such suspension, cancellation or debarment has to be made, a copy of which has to be served upon the dealer.
9. The learned counsel for the State has pointed out that all the Dis
Wholesale dealers can sell fertilizers outside their district but must file a separate Memorandum of Intimation for authorization as per the Control Order.
The cancellation of a Letter of Authorization under the Fertilizer Control Order requires substantiated evidence, and disregarding laboratory test results violates procedural fairness and relevant le....
The disciplinary authority must conduct a fair enquiry and consider the dealer's explanation before suspending authorization, in compliance with the relevant provisions of the Control Order, 2018.
The authority lacked statutory power to cancel a registration after issuing a suspension, thus violating procedural norms of the governing order.
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