Arvind Kumar @ Arvind Kumar Das vs The State Of Bihar & Ors.

The Writ petition is filed for the following reliefs:

The brief facts culled out of the Writ petition are that the petitioner was granted PDS licence No. 03/2016 for running a fair price shop under Gram Panchayat Raj Kusheshwarsthan Dakshini, Biraul, Darbhanga. It is the case of the petitioner that he had been carrying on the business of the PDS shop since the year 2016 without any complaint from the consumers. On, certain allegations were levelled against him, alleging short supply of one kilogram of foodgrains per unit, realization of excess amount of Rs.20/-per unit and for non-distribution of kerosene oil in Ward No. 8 from October, 2020. As enquiry was initiated and the enquiry report was submitted by the Land Reforms Deputy Collector, Biraul. Pursuant to it, the S.D.O. issued show cause notice to the petitioner for which the petitioner submitted his detailed reply denying the allegations and stated that the distribution of foodgrains was being made through the e-pos machine after taking the fingerprints of the beneficiaries and that the quantity and price were duly reflected in the receipts generated by the machine. He further stated that kerosene oil had also been distributed to the consumers of Ward No. 8, and relied upon the relevant distribution register. Despite the said explanation, the petitioner’s licence was cancelled vide order dated 25.05.2021.

The petitioner challenged the aforesaid cancellation order before this Court in CWJC No. 12120 of 2021. This Court, vide order dated 17.09.2021, set aside the order of cancellation and remitted the matter to the Sub-Divisional Officer for proceeding afresh in accordance with law. The petitioner thereafter submitted his representation along with a copy of the said order.

It is the further case of the petitioner that instead of considering the matter in terms of the order of this Hon’ble Court, the Sub-Divisional Officer issued notices again referring to the same show cause notice dated 18.05.2021, to which the petitioner had already submitted his reply dated 21.05.2021. The petitioner, on coming to know of the said notices, again submitted his explanation and specifically pointed out that the earlier show cause had already been replied to. Thereafter, the Sub-Divisional Officer passed order dated 05.01.2022, whereby the licence of the petitioner was again cancelled.

Aggrieved by the order dated 05.01.2022, the petitioner approached this Court in CWJC No. 4290 of 2022. The said Writ petition was also disposed of vide order dated 21.06.2022, relegating the petitioner to avail the statutory appellate remedy, with a direction to the appellate authority to pass a reasoned order within the stipulated period. Pursuant thereto, the petitioner preferred PDS Appeal Case No. 132 of 2022 before the Collector-cum-District Magistrate, Darbhanga. The said appeal was dismissed vide order dated 14.02.2023. Aggrieved by the aforesaid order as well as the order dated 05.01.2022, the petitioner has preferred the present Writ petition.

The Learned counsel for the petitioner submits that the order dated 05.01.2022 is unsustainable, as the Sub-Divisional Officer failed to properly consider the petitioner’s reply dated 21.05.2021, which had already been submitted in response to the original show cause notice. It is submitted that the subsequent notices issued by the Sub-Divisional Officer merely required the petitioner to reply to the same allegations and did not disclose any fresh allegation or material. The Learned counsel for petitioner contends that the Sub-Divisional Officer, instead of independently considering the petitioner’s explanation in the light of the order dated 17.09.2021 passed by this Court, mechanically reiterated the earlier decision of cancellation.

The Learned counsel for the petitioner further submits that the Collector, while deciding the statutory appeal, also failed to examine the aforesaid aspect and did not properly consider the explanation of the petitioner, the earlier order of this Court and the materials produced by the petitioner.

It is contended that the appellate order is mechanical and does not contain adequate reasons for rejecting the grounds raised by the petitioner, despite the specific direction of this Court in CWJC No. 4290 of 2022 that the appellate authority shall provide reasons in support of its decision.

The Learned counsel for the petitioner further submits that the action of the Sub-Divisional Officer is discriminatory, inasmuch as the licences of other similarly situated PDS dealers, namely Ravindra Kumar Ravi and Dilip Kumar Mishra, were restored, pursuant to the orders passed by this Court, whereas a different yardstick has been adopted in the case of the petitioner.

The Learned counsel for the petitioner submits that the petitioner had consistently denied the allegations and had produced the relevant distribution records in support of his defence. It is, therefore, contended that the impugned order dated 05.01.2022 passed by the Sub-Divisional Officer and the appellate order dated 14.02.2023 passed by the Collector-cum-District Magistrate are mechanical in nature & do no disclose adequate reasons for rejecting the grounds raised by the petitioner vitiated by non-application of mind, failure to consider the petitioner’s explanation and violation of the principles of natural justice and prayed to allow the Writ petition for the reliefs claimed.

A counter affidavit was filed on behalf of the respondents. The Learned counsel for the respondents submits that the petitioner’s PDS shop was inspected by the Deputy Collector, Land Reforms, Biraul on 15.05.2021, wherein several irregularities were found, including short supply of one kilogram of foodgrains per unit, realization of excess amount of Rs.20/- per unit and non-distribution of kerosene oil since October, 2020. On the basis of the enquiry report, a show cause notice was issued to the petitioner, who submitted his explanation. His explanation having been found unsatisfactory and the charges having been found in violation of the Bihar Targeted Public Distribution System (Control) Order, 2016, his licence was cancelled on 25.05.2021.

The Learned counsel for the respondents further submits that the aforesaid order of cancellation was set aside by this Court vide order dated 17.09.2021 in CWJC No. 12120 of 2021, not on merits, but on the ground that the Sub-Divisional Officer had not independently applied his mind and had acted on the basis of the directions of the District Magistrate, a copy of which had not been supplied to the petitioner. The matter was accordingly remitted to the Sub-Divisional Officer for fresh consideration in accordance with law.

The Learned counsel for the respondents further submits that pursuant to the order of remand, the Sub-Divisional Officer issued notice to the petitioner to appear and place his case. However, the petitioner deliberately refused to accept the notices, despite repeated attempts at service, including through the local police authorities and registered post. The petitioner, therefore, failed to avail the opportunity granted to him. In the absence of any further explanation from the petitioner, the Sub-Divisional Officer after considering the materials available on record, passed the order dated 05.01.2022 cancelling the PDS licence.

The Learned counsel for respondent further submits that the petitioner’s statutory appeal was duly considered by the Collector-cum-District Magistrate, Darbhanga, who, after hearing the parties and considering the materials on record, dismissed PDS Appeal No. 132 of 2022, vide order dated 14.02.2023. The said order is a reasoned and speaking order and deals with the grounds raised by the petitioner. It is thus submitted that there has been no violation of the principles of natural justice or of the earlier order of this Hon’ble Court.

The Learned counsel for respondent further submits that the Bihar Targeted Public Distribution System (Control) Order, 2016 has been framed to ensure proper distribution of essential commodities to eligible beneficiaries under the National Food Security Act, 2013, and irregularities affecting such distribution cannot be treated lightly. It is further submitted that the petitioner has an efficacious statutory remedy of revision before the Commissioner under Clause 32(vi) of the Bihar Targeted Public Distribution System (Control) Order, 2016. On these grounds, the Learned counsel submits that the present Writ petition is devoid of merit and is liable to be dismissed.

A rejoinder to the counter affidavit was filed on behalf of the petitioner.

The Learned counsel for the petitioner, in reply to the counter affidavit, submits that the allegations levelled against the petitioner in the enquiry report are false and that the petitioner had already submitted his detailed explanation along with the relevant distribution records, which were not properly considered by the Licensing Authority.

The Learned counsel for the petitioner further submits that the order dated 05.01.2022 was passed without proper consideration of the petitioner’s explanation and in disregard of the order dated 17.09.2021 passed by this Court in CWJC No. 12120 of 2021. It is submitted that the petitioner had already replied to the original show cause notice and, thereafter, again submitted his explanation in response to the subsequent notices issued by the Sub-Divisional Officer. The contention of the respondents that the petitioner deliberately refused to accept the notices is denied; it is submitted that the petitioner was out of station at the relevant time and, therefore, could not receive the notices.

The Learned counsel for the petitioner submits that the grounds raised in the counter affidavit are substantially the same as those already considered in the earlier proceedings and that no fresh material has been brought on record to justify cancellation of the petitioner’s licence. It is further submitted that the Collector, while dismissing the statutory appeal, also failed to properly consider the petitioner’s explanation and the relevant materials on record.

The Learned counsel for petitioner, therefore, reiterates that the order dated 05.01.2022 passed by the Sub-Divisional Officer and the appellate order dated 14.02.2023 passed by the Collector are unsustainable for non-application of mind and failure to properly consider the petitioner’s defence, and accordingly seeks interference by this Hon’ble Court.

At this juncture, the Learned counsel for the respondents contended that Section 32(vi) of the Bihar Targeted Public Distribution System (Control) Order, 2016 provides for the provision of revision. Section 32(v) and (vi) read as follows:

Having heard the Learned counsel for the parties and upon consideration of the materials available on record, this Court finds that the present writ petition is directed against the order dated 14.02.2023 passed by the Collector-cum-District Magistrate, Darbhanga in PDS Appeal Case No. 132 of 2022.

The Learned counsel for the respondents has pointed out that the Bihar Targeted Public Distribution System (Control) Order, 2016 provides for a statutory remedy of revision before the Divisional Commissioner against the order passed in appeal. Clause 32(vi) of the said Control Order specifically provides that against the order passed in appeal, a revision may be filed before the Divisional Commissioner.

Although the Learned counsel for the petitioner has vehemently submitted that the impugned orders suffer from non-application of mind, and that the petitioner has been pursuing the matter before this Court, having regard to the availability of the statutory remedy of revision and without entering into the merits of the rival claims, this Court is not inclined to entertain the present Writ petition at this stage.

Accordingly, the present Writ petition is disposed of with liberty to the petitioner to avail the statutory remedy of revision by filing a revision petition before the Divisional Commissioner, Darbhanga Division, within a period of four weeks from the date of receipt/production of a copy of this order. In case the revision petition is filed within the aforesaid period, the delay, if any, in filing the revision shall be condoned by the Divisional Commissioner.

The Divisional Commissioner shall consider and dispose of the revision petition, in accordance with law, preferably within a period of three months from the date of filing of the revision petition.

It is made clear that this Court has not expressed any opinion on the merits of the case, and all questions of fact and law are left open to be considered by the revisional authority.

With the above said observation, the Writ petition is disposed of.

Interlocutory Application(s), if any, shall stand disposed of.