IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10946 of 2008 Ram Sewak Singh S/o Sri Nathun Singh Resident of Village Ubhai, P.S. Paraiya, District-Gaya. …….Petitioner. Versus 1. The State of Bihar. 2. District Magistrate, Gaya. 3. Sub-Divisional Officer, Tekari, Gaya. 4. Block Development Officer Paraiya, District-Gaya. …..Respondents. ----------- For the petitioner : Mr. Ashok Kumar, Advocate. For the respondents : Mr. Rajiv Kumar Singh, A.C. to G.A.VI. ----- 03/ 22.07.2010 Heard learned counsel for the petitioner and learned counsel for the State. 2. This writ petition has been filed by the petitioner challenging order dated 19.12.2007 (Annexure-4) by which Sub- Divisional Officer, Tekari, (Gaya) cancelled P.D.S. Licence No.32 of 1983-85 of the petitioner. 3. The ground for challenging the said order taken by the petitioner is that according to the provision of Clause 7(iii) of the Government of Bihar, Food Supply & Commerce Department Public Distribution System (Control) Order, 2001, (hereinafter referred to as ‘the Bihar Control Order, 2001’ for the sake of brevity) notified vide G.S.R.01 dated 20.02.2007, if an F.I.R is lodged against the fair price shop dealers for contravention of an order issued under Essential Commodities Act, 1955, (hereinafter referred to as ‘the Act’ for the sake of brevity) their licence shall be suspended till the matter is decided by the court of law. Hence, - 2 - he submits that licence of the petitioner has only to be suspended for the period criminal case is pending before the court of law and the State has no jurisdiction to pass the impugned order cancelling the licence of the petitioner. 4. On the other hand, learned counsel for the State submits that Clause 7(ii) of the Bihar Control Order, 2001, provides that if any licencee 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. Hence, he submits that it is prerogative of the authority to choose between the two punishments, namely suspension and cancellation, and the authority concerned had exercised its jurisdiction in accordance with law after inquiry and show cause in the matter. 5. From the facts and circumstances of the case as well as from the averments of the parties, it is quite apparent that originally Licence No.32/1983-85 was granted to the petitioner which continued even after coming into the force of the Bihar Control Order, 2001. It also transpires that on the complaint received by the Sub-Divisional Officer for contravention of the provisions of law as well as terms of the licence, an inquiry was directed to be held by the Block Development Officer in the matter and he submitted his report dated 04.12.2007 (Annexure-1) before the Sub-Divisional Officer who issued notice to the petitioner to file his show cause, whereafter a show cause was submitted on - 3 - 06.12.2007 (Annexure-3) by the petitioner before the Sub- Divisional Officer and after considering the said report, the show cause and the facts and circumstances of the case, the Sub- Divisional Officer, Paraiya cancelled the licence of the petitioner vide order dated 19.12.2007 (Annexure-4). 6. It further transpires that F.I.R was lodged by Block Supply Officer on the direction of the Block Development Officer, Paraiya and Sub-Divisional Officer, Tekari on 06.12.2007 giving rise to Paraiya P.S.Case No. 95 of 2007 for offences punishable under Section 7 of the Act. The matter is still pending in the court of law. 7. Now the question arises as to whether the concerned authority has any jurisdiction to cancel the licence of the petitioner during the pendency of the case pending before a court of law on the basis of F.I.R. lodged against the fair price dealer. For the said purpose clause 7 of the Bihar Control Order of 2001 may be perused:- (i) In the light of Hon’ble Supreme Court order in Civil Writ Petition 196/2001, action will be taken against the licensee in following situation:- Licensees, who (a) do not keep their shops open throughout the month during the stipulated period, (b) fail to provide grain to BPL families strictly at BPL rates and no higher, (c) keep the cards BPL household with them, (d) make false entries in the BPL cards, (e) engage in black marketing or siphoning away - 4 - grains to the open market and hand over such ration shops to such other person/organizations shall make themselves liable for cancellation of their license. The concerned authorities/functionaries would not show any laxity on the subject. (ii) If any licensee contravenes the provision, terms of the licence, duties responsibilities and order of State Government then the Licesing 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. (vi) Allocation to FPS dealers shall not be discontinued under any circumstance. In case of suspension or cancellation of licence allocation to a FPS dealer should be tagged to the nearest FPS dealer. (vii) After suspension of licence of the Licensee the consumers shall be tagged to the nearest FPS shops by the respective Block Supply Officer/In charge Block Supply Officer/Supply Inspector. (viii)In general circumstances the tagging of consumers shall not be changed. (ix) All Consumers of APL, BPL and Antyodaya living within the area earmarked for a FPS dealer should be tagged to such a FPS dealer. - 5 - 8. So far Clause 7 (iii) of the Bihar Control Order, 2001 is concerned, no doubt, it states that if an F.I.R. is lodged against a fair price shop dealer for contravention of an order issued under the Act, his licence shall be suspended till the matter is decided by the court of law, but prior to that Clause 7(ii) is noted which provides that if any licencee contravenes the provisions, terms of the licence, duties, responsibilities and order of the State Government then the licensing authority shall suspend/ cancel the licence by written order. Hence, the authority has jurisdiction to either suspend or to cancel the licence, but the only requirement of law is that it should be done after show cause notice and opportunity to the licencee as per clause 7(iv) of the Bihar Control Order of 2001. 9. In that regard, learned counsel for the petitioner has claimed that if there is no F.I.R. then only the provision of Clause 7(ii) can be made applicable, but if an F.I.R. is lodged the only option left to the authority is to take step under the provision of clause 7(iii) and hence lodging of an F.I.R. cannot be taken into consideration for passing an order of cancellation of licence. 10. From a plain reading of the aforesaid two sub- clauses, namely 7(ii) and 7(iii) of the Bihar Control Order, 2001, it is quite clear that if any licencee contravenes the provisions or terms of the licence then the authority can either suspend or cancel the licence by a written order vide clause 7(ii) after due notice and an opportunity to the licencee, whereas clause 7(iii) provides that if - 6 - a dealer contravenes any order issued under the Act, his licence shall be suspended till the matter (F.I.R) is pending before the court of law. In the instant case, there is no order issued by the authority under the Act, which can be contravened, rather in the instant case, the contravention, as alleged, is of the provision of law and the terms of licence only. In the said circumstances, the provision of Clause 7(ii) squarely covers the facts and circumstances of this case and as such it is the prerogative of the authority concerned to either cancel the licence or to suspend in accordance with law. 11. Furthermore, only when punishment of suspension is chosen under the said Clause, then suspension will not be only for 90 days as provided in clause 7(v) of Bihar Control Order, 2001, rather it would continue till the pendency of the case (F.I.R.) before the court of law as provided in clause 7(iii) of the Bihar Control Order of 2001. 12. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned order of the authority concerned. Accordingly, this writ petition is dismissed. Sunil (S. N. Hussain, J.)