IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16717 of 2009 1. SHAMBHU CHANDRA DUTTA S/O SRI GANESH CHANDRA DUTTA R/O NARAINPUR, P.S. LAUKAHA, DISTT.- MADHUBANI Versus 1. THE STATE OF BIHAR 2. THE COLLECTOR, MADHUBANI 3. THE SUB-DIVISIONAL MAGISTRATE, PHULPARAS, MADHUBANI For the Petitioner: Mr. D.N. Tewari, Adv. For the State : Rajesh Kumar Singh, A.C. to S.C.VI ----------- 2/ 06/12/2010 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is aggrieved by the orders dated 15.9.2008 passed by the Sub-divisional Officer, Phulparas in Supply Case No.12/08 ordering cancellation of his Public Distribution System Dealership licence as affirmed by the appellate order dated 21.7.2009 of the Collector, Madhubani in Supply Case No.59/08-09. Assailing the procedure followed in disposal of the matter learned counsel submits that on 7.9.2008 the petitioner was alleged to have been served a show cause notice to be replied within 24 hours. It is submitted that this was no show cause notice as reasonable time to reply had to be given. The show cause notice is bad on that ground itself. He next submits that the Sub-divisional Officer in the order dated 15.9.2008 has arrived at a finding that the petitioner refused to receive the show - 2 - cause notice and even his son refused acceptance of the same. In fact, the show cause notice was never served upon him. There is no discussion in the order dated 15.9.2008 as to who was the individual/person who went to serve the notice, and on what date and time, acceptance of which was refused. There is no discussion of any nature of evidence taken from that person, oral or documentary for refusal by the petitioner. In his appeal before the District Magistrate, the petitioner again denied receipt of any show cause notice and questioned the action of the respondents in concluding refusal of acceptance by failing to even disclose the name of the person who purported to serve the notice. Learned counsel for the State prays for time to file counter affidavit. On going through the impugned orders the Court does not consider it necessary as in light of the discussions contained in the orders the Court is satisfied that the matter has to be remanded to the Court of the Sub-divisional Officer. The order dated 15.9.2008 recites that the petitioner did not receive the show cause notice. There is no discussion in the order of who was the individual who went to serve the order, on what date the acceptance was refused. That there may have been an endorsement by - 3 - the person on the show cause notice acceptance of which was refused, may not be sufficient as there had to be a specific finding in the proceedings for refusal of acceptance of notice, as otherwise the order assumes the nature of an ex parte order having serious repercussions on the petitioner, especially when the notice to show cause was never served upon him. The so called person who is said to have served notice was unnamed and details of the same was not being disclosed. The Appellate Authority has failed to deal with that objection of the petitioner and dismissed it as trivial in nature to arrive at the finding that since there was more than one report against the petitioner with regard to irregularities, he was aware that he was under enquiry and he did not wish to file any reply. The Court holds that the finding of the Appellate Authority on the aspect of service of notice is based on conjectures and surmises being speculative in nature. There had to be a positive finding of service upon the petitioner or refusal to accept. Even otherwise, there had to be a positive finding that there was a proceeding pending against the petitioner before the Sub-divisional Officer of which the petitioner was aware. Merely because there may have been enquiries against the petitioner shall not lead to a presumption of knowledge with regard to pendency of a proceeding. An enquiry may be held, - 4 - proceedings may not be initiated or vice versa. The impugned orders dated 15.9.2008 and 21.7.2009 are accordingly set aside. The matter is remanded to the Sub-divisional Officer, Phulparas who shall proceed to serve a show cause notice upon the petitioner and after due opportunity to him pass final appropriate orders in accordance with law within a maximum period of one month from the date of receipt/presentation of a copy of this order. The writ application stands allowed. KC ( Navin Sinha, J.)