Ajit Prasad S/O Late Mankeshwar Prasad Vs. the State of Bihar Through Secretary, Food and Civil Supply Department and the S.D.O. - Court Judgment

Excerpt:
- navaniti prasad singh, j.1. in regard to distribution of materials under the public distribution system under the antoday scheme, enquiries were made against the petitioner. the subdivisional officer, on being satisfied about various derelictions committed by the petitioner, directed institution of a first information report against the petitioner. accordingly on 19.04.2008, thawe police station case no 36 of 2008 was registered for an offence allegedly committed by the petitioner which was punishable under section 7 of the essential commodities act. the first information report having been lodged in terms of clause 7 (iii) of the bihar fair price shop order 2007, petitioner's licence was suspended by order dated 21.04.2008 of the subdivisional officer, gopalganj. that is impugned in the present proceedings on two grounds. firstly, under the said order, no licence can be suspended without issuance of show cause notice and secondly if the licence is suspended because of institution of criminal case then, in event of the criminal case ending without conviction, the licence must be restored.2. having heard the learned counsel for the parties, in my view, the writ petition must succeed. for necessary appreciation, one must refer to sub-clauses (ii), (iii), (iv), (v) of clause 7 of the bihar fair price shop order, 2007 which are quoted hereunder:7. suspension and cancellation of the licence:(i) ....(ii) if any licensee contravenes the provision, terms of the licence, duties responsibilities and order of 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 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 mean time 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....3. from a reading thereof, it is clear that unlike the provisions of the bihar trade articles (licenses unification) order 1981, the application of which has been excluded by this order, there is no power of entering suspension. even while suspending licence of a public distribution system dealer, a prior show cause notice is necessary. secondly, the suspension cannot be for a period exceeding 90 days and thirdly if a criminal case has been instituted for violation of any order made under the essential commodities act then so long as the case is pending, the licence would remain suspended.4. here, the petitioner has categorically stated in the writ petition that the criminal prosecution of the petitioner has been quashed by this court in cr misc. no. 31077 of 2008 by judgment and order dated 13.01.2009. thus seen, there is no criminal case pending against the petitioner now. if that be the position then the suspension of petitioner's licence cannot continue any more for two reasons, (i) the suspension was without notice and (ii) solely on ground of pendency of criminal case which has ceased to exist.5. in that view of the matter, the suspension order cannot continue any more and has to be set aside. the writ application is, accordingly, allowed.