IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5418 of 2009 RAMNATH PASWAN, son of Sri. Rajdeo Paswan, resident of village- Mahmadpur, Tola, Kharar, P.S.-Sherghati, District-Gaya. …….Petitioner Versus 1. The State Of Bihar 2. The Commissioner, Gaya. 3. The Collector, Gaya. 4. The S.D.O., Gaya. ……..Respondents. ----------- For the Petitioner : Mr. N.K. Agrawal, Sr. Adv. : Mr. D. N. Tiwari, Adv. For the Respondents : Mr. Prabhu Narayan Sharma, J.C. to G.A. IX ------------ 03. 29.04.2009 The petitioner is aggrieved by the order as communicated to him and contained in memo No. 274 dated 29.04.2008 as passed by the Sub-Divisional Officer, Sherghati, District-Gaya. By the said order which is appended as Annexure-1 to the writ application, the Sub-Divisional Officer who is the Licensing Authority states that his recommendation for revoking the suspension of the petitioner’s licence as made to District Selection Committee was disapproved with a direction to cancel the licence and as such licence was being cancelled. Facts not being in dispute, the writ petition is being disposed of at this stage itself with consent of parties. 2 Petitioner has licence bearing No. 12 of 2000 earlier granted under the provision of Bihar Trade Articles (Licenses Unification) Order, 1984. He was a dealer under the Public Distribution System. The Central Government enacted the Public Distribution System (Control) Order 2001 in exercise of power under Section-3 of the Essential Commodities Act. It provided inter alia for licensing of Public Distribution System dealership separately as per Orders to be framed by the State Government in that regards. The State Government issued Fair Price Shop Order, 2007 with effect from 20.02.2007. Clause-7 of the State order deals with suspension and cancellation of licence. Clause-7(ii, iv and v) are quoted hereunder. Suspension and Cancellation of the Licence:- (ii) If any licensee contravenes the provision, terms of the licence, duties responsibilities and order of the State Government then the licensing Authority shall suspend/canceled the licence by a written order, (iv) It shall be necessary to ask show cause by the Licensing Authority 3 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. It appears that on certain allegations the Sub-Divisional Officer, Sherghati who is the Licensing Authority so far as petitioner is concerned, suspended petitioner’s license and issued a show cause notice to him for its cancellation. Petitioner filed his show cause. Enquiries were ordered by the Sub-Divisional Officer. Having perused the enquiry reports, the Sub-Divisional Officer then referred the matter to the District Selection 4 Committee with his recommendation that in view of the findings of the enquiry reports, the suspension should be revoked. This was recommendation of the Licensing Authority itself. Surprisingly instead of either revoking the suspension or not interfering with the suspension, the District Selection Committee ordered for cancellation of license and apparently feeling bound by the directions of the District Selection Committee, the license of the petitioner has been cancelled. Petitioner then sought to file an appeal. The appeal is before the Collector of the District but as the District Selection Committee is headed by the Collector himself and it was that committee that had ordered for cancellation of licence, petitioner instead preferred a revision application before the Commissioner of the Magadh Division in terms of Clause 29 of the Unification order. The Commissioner rejected the application of the petitioner stating that an appeal lay to the Collector and no appeal lay to him even though it was pointed out that it was pursuant to orders of the Collector that the license has been cancelled and as such there could be no appeal to the Collector from Collector’s own order. Thus the application before the Commissioner of Magadh Division also being rejected on this technical ground which compelled the petitioner to come to this Court. 5 Sri. N.K. Agrawal, learned senior counsel appearing on behalf of the petitioner submits that the entire exercise to cancel petitioner’s license is wholly unwarranted and without jurisdiction. The District Selection Committee has no power to either order for suspension and/or cancel the license. Its powers are circumscribed by the provision of Clause-7(V) of the State order which in clear terms provides that the Selection Committee after due enquiry shall recommend for revocation of suspension of license to the Licensing Authority. No power to cancel or suspend has been given to this Selection committee. In my view, the submissions are correct. Having considered the matter, I find that in terms of clause-7(ii) which is quoted above, the Licensing Authority has been given a discretion to either suspend and/or cancel the license. The provisions of the Unification Order now do not apply to the Fair Price Shop Dealers by virtue of Clause-1 of the State order itself. Thus there is no power of interim suspension i.e. suspension without hearing pending enquiry. It is clear from the provision of Clause-7(iv) which now makes it incumbent upon the Licensing Authority to ask for show cause before suspending the license or cancelling it. Once license is suspended then by virtue of Clause-7(v), 6 a report has to be sent to the District Selection Committee. This Clause also provides that the license can be suspended maximum for a period of ninety days. Thus once a licence after hearing is suspended, two things flow. One, the suspension would automatically stands revoked on expiry of ninety days and second, it has to be sent within fifteen days by the licensing authority to the District Selection Committee who may pass an order revoking the suspension at an earlier date itself. Beyond this there is no authority either on the Licensing Authority or the District Selection Committee to change a suspension into cancellation. In the present case, petitioner’s license was suspended by the Licensing Authority. By virtue of Clause-7(v) referred to above, it would automatically stands expired after ninety days. The Licensing Authority had discretion either to cancel or to suspend the license. He chooses to suspend the license. Having done so that suspension can not now be turned into a cancellation and that too on an unauthorized direction of the District Selection Committee. Apparently the Sub-Divisional Officer though not bound by this unauthorized recommendation of the District Selection Committee but he had no option because the said 7 Committee is headed by the District Magistrate cum Collector who is much superior in Office. Even a wrong act on part of the Collector could not be ignored by the Sub-Divisional Officer. Legally the Sub-Divisional Officer was not bound by the recommendations at all and no such recommendation could be made. There is yet another aspect to the matter. The Licensing Authority being the Sub-Divisional Officer himself, it was his opinion and his discretion that counts. Having suspended the license without issuance of notice of show cause being filed and enquiries made, he found the allegation to be misplaced, formed an opinion that the petitioner was wrongly proceeded against. He himself accordingly by memo No. 180 dated 24.03.2008 recommended for revocation of suspension to District Selection Committee. On the facts as found above, it is clear that the only punishment that could be given and that was given to the petitioner was suspension of his license that can not exceed ninety days. Ninety days have long gone by, the suspension would automatically stands vacated/revoked. The order of cancellation as held above was wholly without jurisdiction. The Sub- Divisional Officer was wrongly directed to cancel the licence, no such direction could be issued. 8 Thus found, the writ petition is allowed. Annexure-1, the impugned memo No. 274 dated 29.04.2000 passed by the Sub-Divisional Officer cancelling petitioner’s licence on the direction of the District Selection committee is set aside. The order of suspension having been passed on 05.07.2007 does not survive any more and stands revoked. Petitioner’s license thus stands restored. Shageer (Navaniti Prasad Singh, J)