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Patna High Court – Orders
Surendra Choudhary vs The State Of Bihar & Ors on 19 August, 2011
                    IN THE HIGH COURT OF JUDICATURE AT PATNA
                                  Letters Patent Appeal No.1086 of 2011
                                                      In
                              Civil Writ Jurisdiction Case No. 2961 of 2010
                 ======================================================
                 Surendra Choudhary, S/o Sitaram Choudhary, R/o Village-Jalalpur, P.O.-
                 Khanpura, P.S.-Giriyak, District-Nalanda.
                                                                    .... .... Appellant/s
                                                    Versus
                 1. The State of Bihar.
                 2. District Magistrate, Nalanda at Biharsharif.
                 3. Additional Collector, Nalanda at Biharsharif.
                 4. Sub-Divisional Officer, Rajgir, Nalanda.
                                                                    .... .... Respondent/s
                 ======================================================
                 Appearance :
                 For the Appellant/s      : Mr. Navendu Kumar,
                                              Mr. Rajesh Kumar Choudhary, Advocates.
                 For the Respondent/s      : Mr. Anant Kumar, A.C. to AAG 2.
                 ======================================================
                 CORAM: HONOURABLE THE CHIEF JUSTICE
                        and
                        HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA

                 ORAL ORDER

(Per: HONOURABLE THE CHIEF JUSTICE)

2 19-08-2011 Feeling aggrieved by the judgment and order dated
13th May 2011 passed by the learned single Judge in above CWJC
No. 2961 of 2010, the writ petitioner has preferred the present
Appeal under Clause 10 of the Letters Patent.

The appellant is a dealer appointed under the Public
Distribution System. In view of the certain irregularities
committed by the appellant, his licence came to be cancelled on
7th April 2005. The challenge to the said order in appeal before the
District Collector, Nalanda was rejected by order dated 31st July
2009. The challenge to the said order in above CWJC No. 2961 of
2010 has failed. Therefore, the present Appeal.

Learned advocate Mr. Navendu Kumar has appeared
for the appellant. He has submitted that Clause 11 of the Bihar
Trade Articles (Licences Unification) Order, 1984 contemplates
2 Patna High Court LPA No.1086 of 2011 (2) dt.19-08-2011

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reasonable opportunity of hearing to the licensee before the
licence issued under the said order is cancelled. Mr. Navendu
Kumar concedes the appellant was given opportunity to file
defence statement and opportunity of hearing. He however
submits that the appellant was not supplied the materials relied
upon by the respondents and opportunity to meet with the said
materials. In support of his submission, Mr. Navendu Kumar has
relied upon the order of cancellation of licence dated 5 th April
2005 (Annexure-5 to the memo of Appeal). He has submitted that
while making the order, apart from the initial report made against
the appellant, further report was called for and relied upon by the
Sub Divisional Officer, Rajgir. The said materials procured by the
Sub Divisional officer were neither supplied to the appellant nor
appellant was given opportunity to meet such report. Thus, the
impugned order of cancellation of licence cannot be said to have
been made after giving a reasonable opportunity of hearing to the
appellant.

We have perused the record. It appears that on the
receipt of complaints against the malfunctioning of the fair price
shop, an enquiry was initiated against the appellant. The appellant
was called upon to explain his conduct. After receiving the
explanation from the appellant, registers were called for. On
examination of the registers, under communication dated 27 th
November 2004, a notice was issued upon the appellant to show
cause as to why for the reasons recorded therein, licence granted
to the appellant should not be cancelled. Pending the proceeding
his licence was suspended. The said notice was replied to by the
appellant on 8.12.2004. After receipt of the said reply, the
impugned order was made on 5th April 2005. Thus, it appears that
the impugned order was made pursuant to the reply submitted by
3 Patna High Court LPA No.1086 of 2011 (2) dt.19-08-2011

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the appellant on 8th December 2004 and the registers were
produced by him. The said registers were examined by the
Incharge Supply Officer-cum-Executive Magistrate. On the report
submitted by the Incharge Supply Officer and the irregularities
indicated in the said report were noted by the Sub Divisional
Officer who cancelled the licence granted to the appellant.

It is indisputable that the report submitted by the
Incharge Supply Officer on 17th March 2005 and the irregularities
committed by the appellant, were the basis for cancellation of
licence. Indisputably, the said report was neither supplied to the
appellant nor was he called upon to explain the irregularities noted
in the said report. To that extent, we do find infirmity in the
impugned order of cancellation of licence.

However, in exercise of the discretionary jurisdiction
conferred under Article 226 of the Constitution, we would not
interfere with the order of cancellation of licence because earlier
the appellant had been given opportunity to meet with the
allegations made against him. The irregularities found in the
earlier report have been reiterated in the latter report dated 17th
March 2005. In above view of the matter, the appellant had the
sufficient opportunity to meet with the allegations made against
him as in the latter report nothing new was found against the
appellant.

For the aforesaid reasons, we dismiss the Appeal in
limine.

                                                  (R.M. Doshit, CJ)


Sujit/-                                    (Birendra Prasad Verma, J)
 

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