ORDER

Heard learned counsel for the petitioner and learned counsel for the respondents.

2. This writ petition has been filed by the petitioner challenging orders dated 3.11.2010 (Annexure-1) and 3.12.2010 (Annexure-3) respectively suspending and cancelling licence no.18 of 2008-09 of the petitioner granted to him for retail sale of fertilisers and also for directing the respondents to restore the petitioner’s licence and to allow him to pursue his business of retail sale of fertilisers.

3. Learned counsel for the petitioner states that order of suspension of petitioner’s licence dated 3.11.2010 was passed by District Agriculture Officer, Purnea (respondent no.2) without giving any notice to the petitioner although it was specifically required under clause 31 of the Fertiliser (Control) Order. 1985. He further states that although before passing the order dated 3.12.2010 for terminating the licence of the petitioner, the authority concerned sent notice to the petitioner dated 19.11.2000 (Annexure-2), but when the petitioner appeared with the relevant documents, the authority concerned abused and ousted him and passed the impugned order. Hence, learned counsel for the petitioner submits that the entire proceeding and the manner adopted by the authorities were illegal, arbitrary and perverse.

4. On the other hand, learned counsel for the respondents vehemently opposes the contentions of learned for the petitioner and states that notice before the order of suspension and also before the order of termination was issued by the authorities and was duly received by the petitioner, but the petitioner did not appear on the date fixed and the authorities were constrained to pass the said order terminating the licence of the petitioner.

5. Learned counsel for the respondents further submits that a criminal case has already been lodged against the petitioner by the authority concerned before the police bearing Purnea Sadar P.S. Case No.66 of 2011 (G.R.No.533/11) in which cognizance has been taken and the same is pending for trial and hence there is no occasion for this court to interfere in the matter as the matter is pending before a proper court of law.

6. Learned counsel for the petitioner submits that against the cognizance in the said case, the petitioner has filed Cr.Misc. No.23269 of 2011 (quashing) which is pending. However, this court does not intend to pass any comment with regard to the said criminal case, specially when in the instant matter a completely different issue regarding the legality or otherwise of the suspension and termination of petitioner’s licence is involved.

7. From the averments made by learned counsel for the parties and the materials on record it is quite apparent that the respondents have failed to produce any material to show that the notices were ever served upon the petitioner. Mere statement that notice had been issued will not fulfill the requirement of rule of natural justice as it has to be proved that it had been served and if it had not been served then notice had to be published and only then it could have been legally assumed that the notices were legally served. This is violation of the specific provisions of the Fertiliser (Control) Order, 1985.

8. Furthermore, from perusal of the impugned order 3.12.2010 (Annexure-3) it is quite apparent that it has been based merely on some allegation of black marketing against the petitioner, but neither any allegation petition had been produced nor any affidavit of any concerned person had been filed nor any material is referred to in the said order which could show that the petitioner had ever indulged in marketing. The said order had been passed only due to adverse inference taken by the said authority on the failure of the petitioner to appear and produce documents. In my view, mere non-appearance of the petitioner cannot prove him guilty, rather the authority should have based its order on any material whatsoever against the petitioner.

9. In the said circumstan