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IN THE HIGH COURT OF JHARKHAND AT RANCHI
RAVI RANJAN, SUJIT NARAYAN PRASAD, JJ.
Shishir Marandi S/o Late Barka Marandi – Appellant
Versus
The State of Jharkhand – Respondent
L.P.A. No. 164 of 2021
Decided On : 09-12-2021
Essential Commodities Act, 1955 - Section 7 - Bihar Trade Articles (Licences Unification) Order, 1984 - Clause 11(1) - PDS Licence - Cancellation of Licence - Claim of writ petitioner is that he was granted PDS Licence by Sub Divisional Officer, who was then Licensing Authority and thereafter, petitioner’s PDS shop started functioning without any complaint by any person and to satisfaction of concerned respondent - Block Development Officer lodged an FIR under Section 7 of Essential Commodities Act on allegation that he got information on telephone that some of villagers caught a person on a bicycle with 6 jericans containing 90 ltrs of kerosene oil – Held, Learned Single Judge has non-suited writ petition only on ground of delay and laches in preferring writ petition for suspension of Licence as same having been passed in year 2009 and writ petition having been preferred in year 2020, i.e. nearly 11 years - However, one should have to understand that suspension is a recurring cause of action and, that apart, a notice was issued for cancellation of Licence also, however, authorities did not conclude proceeding even after lapse of 11 years and such proceeding is still pending - If such proceeding is pending then connected matter or suspension could also be challenged but in such case, writ petitioner must be hoping that cancellation proceeding may finalise in his favour also - In such a situation it was not apt on part of learned Single Judge to throw writ petition on ground of delay and laches - It is not a case that petitioner was not aggrieved by order rather he had filed a reply to show cause for cancellation of Licence and was waiting for its final result - But when a Licencee can be allowed to be dislodged from having fruits of benefits of Licence for time immemorial then after such patience for a loss he had approached this Court for revocation of suspension order as nothing was done finally in case of cancellation of Licence – Petition allowed.
JUDGMENT :
1. This appeal preferred by the writ petitioner-Appellant is directed against the judgment/order dated 25.02.2021 passed by the learned Single Bench of this Court in W.P. (C) No. 2807 of 2020 whereby the prayer for quashing the order of suspension of the PDS Licence of the petitioner dated 17.11.2009 and further for revoking the order of suspension and allowing the petitioner to operate the PDS Shop, was dismissed.
2. The claim of the writ petitioner is that he was granted PDS Licence on 03.03.1989 being Licence No. 24/89 by the Sub Divisional Officer, Dumka, who was then Licensing Authority and thereafter, petitioner’s PDS shop started functioning from 1989 till October, 2009 without any complaint by any person and to the satisfaction of concerned respondent. However, on 01.11.2009 the Block Development Officer lodged an FIR under Section 7 of the Essential Commodities Act on the allegation that he got information on telephone that some of the villagers caught a person on a bicycle with 6 jericans containing 90 ltrs of kerosene oil.
3. It appears that on the basis of the aforesaid allegations action was taken by the Licencing authority and vide Annexure-C to the counter affidavit filed in the writ proceeding by the State vide office order no 164/09 as contained in memo no. 1472 dated 17.11.2009, the PDS Licence of the writ petitioner was suspended with immediate effect and the PDS Shop was given to some other Licencee so that people of the locality may not suffer. Subsequent thereto, a show-cause notice was issued by the Sub Divisional Officer, Dumka vide memo no. 01 dated 02.01.2020 which appears to have been signed on 30.12.2009 but issued on 02.01.2010. Vide Annexure-4 to the writ petition, the writ petitioner-appellant was directed to show cause within three days as to why for the aforesaid illegality and misconduct and wrong done by him in violation of the terms and conditions of the Licence, his PDS Licence should not be cancelled. The writ petitioner has submitted his show cause. However, Mr. Piyush Chitresh, learned A.C. to A.G. appearing for the State informs us that no final order has been passed in the aforesaid proceeding even after lapse of 11 years.
4. This is intriguing and surprising that how and in what manner the State authorities use to proceed, as at one hand, they had kept the Licence of the petitioner suspended and then issued notice for cancellation of Licence but have not acted thereafter towards concluding such proceeding.
5. The first and foremost question which arises in this case is as to under what provision of law such action of suspension of Licence and then issuance of a notice for cancellation of Licence was passed?
6. Sensing the fact that at the relevant point of time PDS Control Order was not in vogue in the State of Jharkhand, a stand has been taken by the learned counsel for the State that the same was issued under Clause 11(1) of the Bihar Trade Articles (Licences Unification) Order, 1984 (hereinafter referred as “Unification Order”).
7. Now we are proceeding to test as to whether the order of suspension passes the test of its legality under Clause 11(1) of the Unification Order or not?
8. It is apparent from bare perusal of the suspension order that it refers no provision of statute or law under which the same has been passed. However, since stand is being taken at the time of hearing by the State of Jharkhand that it was passed under Clause 11(1) of the Unification Order, we are considering the same to have been passed under such provision.
9. For better appreciation the relevant provision under Clause 11(1) and 11(2) of the Unification Order is extracted and quoted hereunder as:
(1) If any licensee or his agent or servant or any other person acting on his behalf contravenes any of the terms and conditions of the licence, then without prejudice to any other action that may be taken against him under the Essential Commodities Act, 1955 ( Cent
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