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.)