IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11469 of 2005 AIKTADA HUSSAIN @ MINHAZ HUSSAN Versus THE STATE OF BIHAR & ORS ----------- 6 30/1/2009 Heard Mrs. Anjana Mishra, learned counsel appearing on behalf of the petitioner and J.C. to Standing Counsel No.4 for the State. The petitioner has assailed the order dated 12.7.2005 passed by the Subdivisional Officer, Bhabhua-Cum- Licensing Authority, canceling license of the petitioner on the ground of it being forged. Though a number of grounds have been raised by the petitioner for setting aside the impugned order, one of the main ground taken in the writ application which would be good enough to dispose of this writ application is that before passing of the aforesaid impugned order the petitioner was neither given any opportunity by way of show cause notice nor an opportunity of hearing and therefore the impugned order taking away the right of the petitioner to carry his business as guaranteed under Article 19 2 read with Article 21 of the Constitution had been infringed without even complying the principles of natural justice. Counsel for the State has however tried to rely on some portion of the counter affidavit to suggest that an opportunity of hearing was given to the petitioner before passing of the impugned order. He also submits that as a matter of fact this writ application is not maintainable as the petitioner had statutory alternative remedy of filing an appeal against the order of cancellation of license passed by the Licensing Authority and in this context refers Clause 29 of the Unification order. In the opinion of this Court, the aforesaid submissions of learned counsel for the State is only to be noted for its being rejected. First of all as with regard to question of maintainability of writ application, all that has been only noted is that the fretter of exhaustion of alternative remedy is merely a self imposed rule of discretion being applied by the writ courts. This aspect of the 3 matter stands well settled right from the first of the leading judgment of its kind in the case of Union of India Vs. Mohd. Nooh reported in AIR 1958 SC 86 followed in catena of subsequent judgments of the Apex Court include in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, reported in (1998)8 SCC 1, laying down a law in this regard that rule of the exclusion of the writ jurisdiction by availability of alternative remedy is a rule of discretion and not of compulsion. In an appropriate case inspite of availability of alternative remedy the High Court may still exercise the writ jurisdiction in at least three circumstances namely :- i) Where the writ petitioner seeks indulgence of any fundamental rights; ii) Where there is violation of natural justice; iii) Where orders are wholly without jurisdiction or vires of the Act is challenged. The present case definitely attracts the second condition as license of the petitioner under unification order 4 has been cancelled without affording any opportunity of hearing muchless a reasonable opportunity in terms of Clause- 11(2) of Bihar Trade Articles (Licences Unification) order 1989. That being so, the first objection of counsel for the State as with regard to maintainability of the writ application must be rejected. The second submission of counsel for the State as with regard to questioning the definite assertion of the petitioner that no show cause notice was issued on the petitioner, muchless, opportunity of hearing was extended to him before issuance of the impugned order in paragraph 14 of the writ application has not been denied in specific terms. To make this issue clear this Court would quote paragraph 14 of the writ application which reads as follows:- “That, it is humbly stated and submitted that the impugned order contained in Annexure 9 was passed without any notice to the petitioner and purely behind his back as no inquiry was conducted in ward no.8 to ascertain the truth of the matter since the petitioner has been the resident of ward no.8 and any spot inspection in ward no. 13 5 could not be enough to prove the case of the petitioner as never resided in ward no.13. Thus any order passed to the prejudice to the petitioner was purely arbitrary and malafide and could not sustained itself in the eye of law.” Paragraph 14 of the writ application has been answered in paragraph 19 of the counter affidavit which reads as follows:- “That the averments made in par no. 14 of the writ application are out and out false and baseless. As a matter of fact sufficient opportunity was given to the petitioner and enquiry was conducted by Incharge Marketing Officer, Nagar Panchayat at Bhabua in presence of one of Executive Magistrate, Bhabua and as such the same is fit to be confirmed and maintained in the eye of law.” That being so, the statement in the counter affidavit is not only vague but is incomplete. The moment respondents had taken a plea that such opportunity was given to the petitioner they were duty bound to enclose evidence of such opportunity which would be nothing else but the copy of show cause notice itself. It is well settled that when pleading either by the writ petitioner or by the respondent which is capable of being 6 supported by a document the same must be produced failing such statement cannot be accepted. Reference in this connection may be made to the following passage of the judgment of Apex Court in the case of Bhagat Singh and others Vs. State of Haryana and others reported in AIR 1988 SC 2181, which reads as follows : - "...... when a point which is ostensibly a point of law in required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded of the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the court will not entertain the point. There is a distinction between a pleading under the Civil P.C. and a writ petition of a counter affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it........." That being so, this Court will have no option but to hold that the petitioner was never given any show cause notice and/or opportunity of hearing. 7 It has to be noted that under the Bihar Trade Articles (Licensing Unification) Order 1984 the provision for suspension and cancellation of license specifically provides for such notice and an opportunity of hearing. This would be evident from provisions of Clause 11 of Unification order which is quoted hereinbelow:- “Suspension and cancellation of license (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 license, then without prejudice to any other action that may be taken against him under the Essential Commodities Act, 1955 (Central Act 10 of 1955) his license may be cancelled or suspended with regard to one or more trade articles by an order in writing of the Licensing Authority and an entry will be made in his license relating to such suspension or cancellation.” “(2)No order of cancellation shall be made under this clause unless the licensee has been given a reasonable opportunity stating his case against the proposed cancellation but during the pendency or in contemplation of proceedings of cancellation of license, the license can be suspended for a period not exceeding 90 days without giving any opportunity to the licensee of stating his case. Such suspension shall be limited only to those trade articles regarding which contravention has been made by the licensee.” 8 In presence of such specific mandatory provisions and in view of use of expression “shall” in clause 11 (2) of the Unification Order it would be difficult for this Court to accept that the petitioner was given reasonable opportunity of stating his case against cancellation. This Court, however, is conscious that whatever have been stated in the counter affidavit by way of supporting reasons in the impugned order are pertaining to allegations against the petitioner which are quite serious in nature and therefore while quashing the impugned order dated 12.7.2005, only on the ground of violation of the principles of natural justice, the Subdivisional Officer, Bhabua, the Licensing authority, is hereby directed to give a show cause notice containing reasons for such proposed cancellation as also the evidence which is to be relied by the Licensing Authority. As and when such a show cause notice is issued to the petitioner, he 9 must file his reply keeping in mind not only the contents of show cause notice but also the reasons disclosed in the counter affidavit within a period of one month from the date of service of show cause notice. Such a show cause notice also must be issued to the petitioner within a period of one month of receipt of copy of this order by the Respondent S.D.O., Bhabhua and upon filing of show cause reply by the petitioner in the period of next one month a final order must be passed by the Subdivisional officer in the within two months of filing the show cause reply by the petitioner such final order must be also communicated, by registered post and/or by personal service on the petitioner in a period of 15 days of the order, whereafter the petitioner, if aggrieved will have to take recourse of filing an appeal in terms of the Unification order. This Court would, however, make it clear that it has not made any expression on the merits of allegation made against the petitioner and thus it would be open 10 for the Licensing Authority to pass final order strictly in accordance with law. As with regard to violation of interim order of this Court dated 27.2.2007, violation whereof has been complained by the petitioner by filing I.A. No. 884 of 2008 in this case, nothing is being decided by this Court in view of the fact that the petitioner has already taken an appropriate remedy by way of filing a contempt petition, being M.J.C. No. 723 of 2008. With the aforementioned observation and direction this application is disposed of. (Mihir Kumar Jha, J.) Abhay Kumar