IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13967 of 2006 RAMAUTAR YADAV, son of Shree laxmi Yadav, resident of village Malin Belha, P.S.Laukha, Dist.Madhubani-petitioner Versus 1.THE STATE OF BIHAR through the Secretary cum Commissioner Food, Supply and Commerce Department, Old Secretariat, Patna 2.The District Magistrate, Madhubani 3.The Sub-Divisional Officer, Phulpras, District Madhubani-------------------------------------respondents ----------- For the petitioner :M/S Ramesh Kumar Agrawal Anupanand Jha, Advocates For the State :Mr.Prashant Kashyap,A.C. to AAG 4 ----- 2. 16.3.2010 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner seeks quashing of the order dated 12.12.2000 (Annexure-4) passed by the Sub-Divisional Officer, Phulparas, District Madhubani, respondent No.3 and the order dated 31.7.2006 (Annexure-7) passed by the District Magistrate, Madhubani, respondent No.2 and a direction to the respondent No.3 to restore the petitioner‟s licence No. 99/88 issued under the Bihar Trade Articles (Licenses Unification) Order, 1984, hereinafter referred to as „the Unification Order‟, in view of the order of acquittal dated 27.6.2006 (Annexure-5) passed by the Sub-Divisional Judicial Magistrate, Jhanjharpur. 2 The petitioner was a dealer under the Public Distribution System Scheme at village Malin, Panchayat Malin Belha, Circle Khutona in the District of Madhubani having retail licence No.99/88 under the provisions of the Unification Order. An F.I.R. being Lalmania P.S.case No. 85/98 dated 31.5.1998 under Section 7 of the E.C. Act was lodged against the petitioner and another accused person alleging that the petitioner was transporting 21 bags of rice loaded on tyre cart for black marketing. In view of the aforesaid F.I.R. the licensing authority, Sub-Divisional Officer, Phulparas issued show cause notice No. 749 dated 5.6.1998 to the petitioner after suspending his licence as to why his licence should not be cancelled for violating the terms and conditions of the licence. The petitioner filed his detailed show cause along with enclosures in the office of the Sub-Divisional Officer on 11.6.1998 (Annexure-2). However, by the order dated 12.12.2000 the Sub-Divisional Officer, Phulparas cancelled the licence of the petitioner stating that he had not replied to 3 the show cause nor submitted the documents relating to his shop (Annexure-4). In the criminal case bearing G.R.No.7/98, T.R.No. 685/2006 arising out of Lalmania P.S.case No. 85/98 under Section 7 of the E.C.Act the Sub-Divisional Judicial Magistrate, Jhanjharpur by his judgment dated 27.6.2006 acquitted the petitioner holding him not guilty under Section 7 of the E.C.Act after finding that the prosecution has miserably failed to substantiate its case beyond shadow of reasonable doubt and benefit of doubt may be awarded to the accused persons. The petitioner thereafter filed petition dated 12.7.2006 before the Sub-Divisional Officer, Phulparas stating the aforesaid fact regarding his acquittal in the criminal case under Section 7 of the E.C.Act and praying to revive his licence No.99/98. When no action was taken on the aforesaid petition the petitioner filed an appeal before the District Magistrate, Madhubani bearing case No. 6/2006-07 against the order dated 12.12.2000 passed by the Sub- Divisional Officer, Phulparas, but by the order 4 dated 31.7.2006 the said appeal was dismissed on the ground that it has been filed after an excessive delay of five years and further that the petitioner has been acquitted in the case after giving him the benefit of doubt. Being aggrieved by the aforesaid action of the respondent authorities the petitioner has come to this Court. Learned counsel for the petitioner submits that the only reason for the cancellation of the licence as stated in the impugned order dated 12.12.2000 appears to be the allegation which also formed the allegation in the F.I.R. lodged against him and, thus, the petitioner having been acquitted in the criminal case the cancellation of licence ought to be set aside and the licence of the petitioner should be restored. It is further submitted by learned counsel that the order dated 12.12.2000 of the Sub- Divisional Officer, Phulparas suffers from complete non-application of mind as it does not at all refer to the detailed explanation filed by the petitioner which was duly received in 5 the office of the Sub-Divisional Officer on 11.6.1998 itself. It is further submitted that none of the grounds germane to the cancellation of licence is to be found in the said order as provided under Clause 11 of the Unification Order. It is further contended by learned counsel that the order of the District Magistrate also suffers from serious legal infirmities as it merely rejects the case of the petitioner on the ground of excessive delay and further by holding that the petitioner had been acquitted giving him the benefit of doubt. It is urged that the District Magistrate has not considered the non est nature of the order dated 12.12.2010 as it does not refer to any specific allegation against the petitioner for the violation or contravention of any part of the terms and conditions of the licence except referring to certain complaint made against the petitioner. In fact, the order dated 12.12.2000 does not even advert to the specific complaint made. Yet without considering any such matter the order has been passed against the 6 petitioner by the District Magistrate by rejecting the appeal filed by the petitioner. In support of his stand learned counsel relies upon a decision of this Court in the case of Laxmi Yadav vs. State of Bihar & others : 2006(4) PLJR 225, in paragraphs 3 to 6 of which it has been laid down as follows : “3. Mr.Ojha learned counsel appearing for the State has opposed this application on the ground that against order of cancellation statutory appeal is provided. In other words, that there being an alternative remedy this court should not interfere. I am not impressed with the said submission for the simple reason that the petitioner is not appealing against the said order. The petitioner submits that the said order was passed on the ground that the petitioner was an accused in a criminal case which was pending. This ground has now became non est which entitles the petitioner for getting his licence restored. 4. In this connection I may refer to clause 13 of the Unification Order. Clause 13 provides that where a licensee is convicted for the contravention of any order made under the Essential Commodities Act, the Licensing Authority shall cancel his licence. 5. The proviso to clause 13 provides that where such conviction is set aside in any appeal or revision, the Licensing Authority may on an 7 application of the dealer whose licence has been cancelled, restore the licence to such dealer. 6. In view of the said proviso the Licensing Authority would be well advised to act upon the application made by the petitioner. In case the application is not traced out the petitioner will be at liberty to file an application again and in the light of observation made above the Licensing Authority may pass necessary orders within one month from the date of receipt of a copy of this order in accordance with law.” Learned counsel for the State, on the other hand, submits that the case of the petitioner is not covered by Clause 13 of the Unification Order as the licence has not been cancelled on the ground of conviction of the petitioner in a criminal case which order of conviction was subsequently set aside in appeal. Rather the licence of the petitioner has been set aside after issuing a proper show cause to him in accordance with the provisions of Clause 11 of the Unification Order. It is further submitted by learned counsel that the District Magistrate has rightly rejected the appeal on the ground of excessive delay. 8 On a consideration of the submissions of the parties, this Court finds sufficient force in the submission of learned counsel for the petitioner. It is true that the petitioner filed the appeal before the District Magistrate after nearly 5-1/2 years of the cancellation of his licence but the order of the District Magistrate does not show any proper application of mind. While the District Magistrate was right to point out that the petitioner has been acquitted giving him benefit of doubt, he ought to have also noted the ten lines order passed by the Sub-Divisional Officer, Phulparas which does not even advert to the accusation made against the petitioner and does not at all advert to the show cause filed by the petitioner. It was a complete non-speaking order. As a matter of fact, the order dated 12.12.2000 of the Sub-Divisional Officer is contrary to the facts on the record as it is evident that the petitioner did file his show cause whereas the said order states that the explanation has not been given by the petitioner. 9 However, the fact remains that the petitioner did not immediately challenge the said order of the Sub-Divisional Officer in appeal before the Collector and has approached the higher authorities including this Court after a substantial passage of time. In the above circumstances, this Court is of the view that the matter should be remitted to the licensing authority to consider the application dated 12.7.2006 filed by the petitioner for restoration of his licence keeping in view the fact that the petitioner has been acquitted by a duly constituted court of law in a regular criminal proceeding in which the authorities have failed to make out the charges against him. In the said circumstances, it does not lie in the mouth of the authorities to turn around and say that the petitioner has been acquitted merely giving him benefit of doubt when the order cancelling the licence does not even show that the public complaint received was examined and found to be true so as to come to a conclusion that there has been contravention of any terms and 10 conditions of the licence, making the same liable to cancellation. Accordingly, it is directed that the Licensing Authority, Sub-Divisional Officer, Phulparas shall consider the petition filed by the petitioner on 12.7.2006 for restoration of his licence within a period of three months of the receipt/production of a copy of this order. While doing so, he shall not be prejudiced by the rejection of the appeal by the District Magistrate, Madhubani and any observation made in the said order. The writ application is, accordingly, partly allowed with the aforesaid observations and directions. (Ramesh Kumar Datta,J.) Spal/