Sujit Narayan Prasad, J
1. The appeal under Clause 10 of the Letters Patent is directed against the order/judgment dated 10.05.2018 passed by learned Single Judge of this
Court in W.P.(C) No. 5596 of 2013, whereby and whereunder, the writ petition has been dismissed declining to interfere with the order passed by the
administrative authority cancelling the public distribution system (in short PDS) licence of the writ petitioner.
2. The brief facts of the case as per the pleading made in the writ petition required to be enumerated, read as under:
The PDS licence issued in favour of the writ petitioner has been cancelled on the allegation that the writ petitioner was going to sell ration articles in
black-market and on the way it was seized. The authority has instituted FIR on the said allegation being Ramgarh P.S. Case No. 39 of 2010 for
alleged commission of offence under Section 7 of the Essential Commodities Act and show cause notice was also issued to the writ petitioner for
cancellation of her PDS licence.
The writ petitioner had filed her reply to the said show cause notice denying the allegation but the reply having not been found to be satisfactory, the
licence was cancelled.
The writ petitioner preferred an appeal before the Deputy Commissioner, Dumka being R.M.A. No. 43 of 2010-11 and the appeal stood dismissed
upholding the order of the licensing authority. However, in the criminal case which was instituted against the writ petitioner for the alleged offence, he
was discharged from the criminal liability. The writ petitioner preferred a writ petition being W.P.(S) No. 4814 of 2011 for quashing of the decision of
the authority by which the PDS licence was cancelled on the ground of discharge of the writ petitioner from the criminal liability since according to the
writ petitioner, the cancellation of licence was based on same facts and evidences which was the issue of the criminal charge.
The aforesaid writ petition was disposed of vide order dated 09.10.2012 and the learned Single Judge after taking into consideration that the issue
requires consideration, disposed of the writ petition giving liberty to the writ petitioner to approach the appropriate authority for consideration of the
fact to be decided within the period of two months from the date of receipt of such representation.
The writ petitioner filed his representation and a proceeding was initiated being R.M.P. No. 07 of 2012-13 which was dismissed vide order dated
24.05.2013 on the ground that the acceptance of the final form by the learned Chief Judicial Magistrate, Dumka vide order dated 23.11.2010 was not
correct and the same requires an appeal to be filed before the competent court of law inasmuch as the criminal proceeding is different from the
proceeding of cancellation of licence as prescribed under Trade Articles Order.
The aforesaid order dated 24.05.2013 was challenged by filing writ petition being W.P.(S) No. 5596 of 2013 but the same having been dismissed, the
present intra-court appeal has been preferred.
3. Mr. Rajeeva Sharma, learned counsel for the appellant has assailed the order passed by the learned Single Judge by taking the legal issue, i.e., the
order impugned does not reflect as to under which provision of law the respondent-authority has cancelled the licence.
It has been contended that the Public Distribution System (Control) Order, 2001 was not notified by the State of Jharkhand the day when the power
conferred under the said Control Order was exercised by the authority cancelling the licence.
It has been contended that the Sub-Divisional Officer while cancelling the licence has taken into consideration the report of the Block Supply Officer,
Ramgarh but the copy of the said report has never been served upon the writ petitioner. It has been contended that if the Sub-Divisional Officer was
the licensing authority then how can he base his order on the opinion given by the Block Supply Officer, Ramgarh which was obtained during the
proceeding dated 15.07.2010.
It has also been contended that the licence which was cancelled whether it was suspended under clause 11(1) or 11(2) of the Bihar Trade Articles
(Licenses Unification) Order, 1984.
4. This Court has passed an order on 15.01.2020 directing the State to answer some queries as follows:
“…
(i) Under which provision of law the respondents-authorities have cancelled the license?
(ii) License was granted under which provision of law?
(iii) License was granted for what purpose?
(iv) Whether the Control Order, 2001 was notified in the State of Jharkhand or not? If yes, then it was enforced from which date.
(v) Annexure-A, which is the order passed by the Sub Divisional Officer cancelling the license, notices that the Block Supply Officer, Ramgarh had
given certain report and that report has formed one of the basis for cancellation of license then whether, along with the show cause notice, the
respondents-authorities had supplied a copy of that report to the licensee or not to enable him to file a proper reply to the show cause notice?
(vi) If the S.D.O. was the Licensing Authority then how can he base his order on the opinion given by the Block Supply Officer, Ramgarh which was
obtained during the proceeding dated 15.07.2010?
(vii) If any opinion was sought from an Officer below the rank of Licensing Authority and that has formed one of the basis of the order of cancellation
of license, whether the copy of that opinion was supplied to the licensee and her comments were sought for or not?
(viii) Whether the license of the appellant-writ petitioner was suspended before cancellation or not?
(ix) If it was suspended then whether it was suspended under Clause 11(1) or Clause 11(2) of the Bihar Trade Articles (Licenses Reunification)
Order, 1984?
…â€
5. Affidavit has been field by the State on 17.03.2020 wherein reply has been submitted to the queries made by this Court vide order dated
15.01.2020.
So far as the query no.(i) is concerned, it has been stated that the licence of the writ petitioner was cancelled by the Sub-Divisional Officer, Dumka in
the light of the clause 5 of the Public Distribution System (Control) Order, 2001 with immediate effect vide Memo No. 907 dated 15.09.2010.
So far as the query no.(ii) is concerned, it has been stated that the licence to the writ petitioner was granted under the provisions of Bihar Trade
Articles (Licenses Unification) Order, 1984.
So far as the query no.(iii) is concerned, it has been stated that the said licence was granted for the purpose of distribution of food grains and other
commodities to the beneficiary covered under Food and Public Distribution System.
So far as the query no.(iv) is concerned, it has been stated that the Control Order 2001 was not notified in the State of Jharkhand.
So far as the query no.(v) is concerned, it has been stated that along with the show cause notice the respondent authorities had not supplied a copy of
the report of the Block Supply Officer, Ramgarh.
So far as the query no.(vi) is concerned, it has been stated that the report was called for from the Block Supply Officer, Ramgarh for the purpose of
ascertaining the facts. It was informed by the Block Supply Officer that the writ petitioner was found to be black-marketing the rice by the villagers
and FIR was lodged in the local police station being Ramgarh P.S. Case No. 39 of 2010. The Sub-Divisional Officer asked for explanation from the
writ petitioner pursuant to which the writ petitioner submitted her explanation which having not been found to be satisfactory, the PDS licence was
cancelled.
So far as the query no.(ix) is concerned, it has been stated that the licence was suspended under clause 11(2) of the Bihar Trade Articles (Licenses
Unification) Order, 1984. It has further been stated that the Jharkhand Targeted Public Distribution System (Control) Order, 2017 was promulgated
and framed in the State of Jharkhand in the year 2017 in exercise of power vested under clause 9 of the Public Distribution System (Control) Order,
2015 which has been framed under Section 3 of the Essential Commodities Act, 1955.
6. This Court, after having heard the learned counsel for the parties and taking into consideration the questionnaire made vide order dated 15.01.2020
which has duly been replied by the State authority by filing counter affidavit dated 17.03.2020 is required to consider, more particularly by taking into
consideration the fact which is having bearing in the instant case regarding the jurisdictional issue, that the Public Distribution System (Control) Order,
2017 in the name and style of Jharkhand Targeted Public Distribution System (Control) Order, 2017 since was promulgated in the year 2017 in
exercise of rule framed under Section 3 of the Essential Commodities Act, 1955 then question arises that on what basis the licence of the writ
petitioner was cancelled on 15.09.2010 in exercise of power conferred under Public Distribution System (Control) Order, 2001.
Further question which requires to be considered that when the report of the Block Supply Officer, Ramgarh has not been supplied to the writ
petitioner then can it not be said to be violation of principles of natural justice since the PDS licence has been cancelled based upon the report of the
Block Supply Officer as has been referred in the order of cancellation of the PDS licence but the same has not been supplied which has been
admitted by the State authority in the affidavit while answering the query no.(v).
7. It requires to refer herein that the issue of jurisdiction has not been agitated before the learned Single Judge, however, the same has been agitated
before this Court and this Court has considered the aforesaid issue on the basis of the position of law that the issue of jurisdiction is purely the legal
issue and can be raised at any stage.
The intra-court appeal since is the continuation of the proceeding under Article 226 of the Constitution of India, therefore, the issue of jurisdiction has
been considered and therefore, the order was passed by this Court on 15.01.2020 asking the State to reply for the purpose of establishing the authority
under which the order has been passed for cancelling the PDS licence.
8. The position of law is well settled that any action if taken by the concerned authority without any authority of law, the same is nullity in the eyes of
law. The authority of law confers power upon an authority to take a decision while exercising the statutory power if conferred under the specific
statute.
9. Here, in the given facts of the case, the PDS licence of the writ petitioner was cancelled on 15.09.2010 and as would appear from the order of
cancellation which is by virtue of the order dated 27.03.2010 passed by the Sub-Divisional Officer, Dumka wherein such power has been exercised as
conferred under clause 5 of the Public Distribution System (Control) Order, 2001.
10. This Court has specifically posed a question upon the respondent-State whether the Control Order, 2001 was notified in the State of Jharkhand or
not? If yes, then it was enforced from which date?
While replying the same in the counter affidavit dated 17.03.2020 as under paragraph-7, it has been stated that the Control Order, 2001 was not
notified in the State of Jharkhand.
11. It is further evident from paragraph-13 that the Jharkhand Targeted Public Distribution System (Control) Order, 2017 was promulgated and
framed in the State of Jharkhand in the year 2017 in exercise of power vested under clause 9 of the Public Distribution System (Control) Order, 2015
which has been framed under Section 3 of the Essential Commodities Act, 1955. For ready reference, both the paragraphs reads as under:
“7. That in reply to question no. (iv) formulated by the Hon’ble Court by order dated 15.1.2020 the control order 2001 was not notified in the
State of Jharkhand.
13. That Jharkhand Targeted Public Distribution System (Control) Order, 2017 was promulgated and framed in the State of Jharkhand in the year
2017 in exercise of power vested under clause 9 of the Public Distribution System (Control) Order, 2015 which has been framed under Section 3 of
the Essential Commodities Act, 1955.â€
12. The question, therefore, will be that when the aforesaid control order came into being in the year 2017 then how the licence was cancelled on
15.09.2010.
The respondent-State is not in a position to explain the same and the same cannot be explained in view of the submission of the State about the
promulgation of the Jharkhand Targeted Public Distribution System (Control) Order, 2017 which was promulgated and framed in the year 2017 in the
State of Jharkhand.
13. It would be evident from the order of cancellation of PDS licence that the PDS licence was cancelled in view of the Public Distribution System
(Control) Order, 2001 but when the aforesaid control order was not in existence the day when the PDS licence was cancelled rather the same has
been promulgated and framed in the year 2017 then how such power has been exercised.
14. This Court, therefore, is of the view that the day when the PDS licence of the writ petitioner got cancelled, the concerned authority who has
cancelled the said licence was having no power to take such decision.
The position of law is well settled that any decision taken by the authority contrary to the authority as has been conferred under the statute, the same
will be treated to be nullity, therefore, herein also the control order having been promulgated in the year 2017, as such, the power which was exercised
by the Sub-Divisional Officer, Dumka on 15.09.2010 is held to be nullity in the eyes of law.
15. The other ground, i.e., providing sufficient and adequate opportunity of hearing is concerned, this Court has posed specific question as to whether
the report of the Block Supply Officer, Ramgarh was served upon the writ petitioner or not?
It has been replied by the respondent-State in the counter affidavit that no such report was supplied as would appear from the statement made to that
effect at paragraph-8. For ready reference, the said paragraph reads as under:
 “8. That in reply to question no. V formulated by this Hon’ble Court vide order dated 15.01.2020 it is stated that along with the show cause
notice the respondent authorities had not supplied a copy of the report of the Block Supply Officer, Ramgarh.â€
16. It is the settled position of law that when any penal action is being taken on the basis of a report which is being referred in the show cause notice,
the same is mandatorily to be supplied to the concerned so that the proper reply be filed by going through the content of the report.
17. The respondent-State since has admitted that no report of the Block Supply Officer, Ramgarh has ever been served to the writ petitioner,
therefore, the same being in violation of principles of natural justice, the order passed by the licensing authority requires interference.
18. Further, the revisional authority has taken the ground that the cancellation of licence is having no bearing with the criminal case. The reason has
been assigned that even though the writ petitioner has been discharged from the criminal liability it requires to be contested by filing revision. The
revisional authority taking the aforesaid ground has refused to interfere with the order cancelling the PDS licence.
19. This Court, on this context, is of the view that if the writ petitioner has been discharged from the criminal liability on acceptance of the report of
the Chief Judicial Magistrate and no protest has been made by anyone and if the cancellation of the PDS licence is totally based upon the institution of
FIR, the discharge of the writ petitioner from the criminal liability ought to have been taken into consideration instead of taking the ground that the
acceptance of the report is required to be challenged before the higher court/forum.
The report which has been accepted by the Chief Judicial Magistrate requires to be challenged before the higher court/forum, the same according to
the considered view of this Court, ought not to have been taken into consideration by the revisional authority, reason being that whether the appeal is
to be filed or not that is the concern of the State who is the prosecutor and if no appeal has been filed, the licencee cannot be held responsible and
cannot be allowed to be deprived from the acceptance of the final form which ultimately culminated into discharging the writ petitioner from the
criminal liability.
20. This Court, after having discussed the factual aspect has gone across the order passed by the learned Single Judge and has found therefrom that
the learned Single Judge has accepted the finding recorded by the revisional authority to the effect that there is no bearing of the criminal case in the
Public Distribution System. It cannot be disputed, so far as the legal position is concerned, that the issue of criminal liability is having no bearing in the
administrative decision since both run parallel on different context but it is equally settled that the principle of law is to be tested on the basis of the
given facts of the case as has been held by the Hon'ble Apex Court in Dr. Subramanian Swamy vs. State of Tamil Nadu and Others, (2014) 5 SCC
75, paragraph 47 of which reads as under:
“47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only
an authority for what it actually decides, and not what logically follows from it. “The court should not place reliance on decisions without discussing
as to how the factual situation fits in with the fact situation of the decision on which reliance is placed.â€â€
 21. Here, in the given facts of the case, the investigating agency could not be able to prove the charge and the final form was submitted before the
concerned court which has been accepted and when the very basis of the cancellation of the licence is the question of criminal case about black-
marketing of rice which ultimately culminated into discharge of the writ petitioner from the criminal liability, the same cannot be said to be of no
bearing with the issue of consideration of legality and propriety of the cancellation of PDS licence.
The matter would have been different if the licence would have been cancelled on the basis of the inspection conducted on the shop of the licencee
different to that of the criminal case and in course thereof if any finding would have been arrived at by the licensing authority in the administrative side
then only the principle of non-applicability of the acquittal in a criminal case or discharge from the criminal liability could have been taken to of no
concern but that is not the fact herein.
22. This Court, in view of the discussion made hereinabove, is of the view that the order passed by the learned Single Judge requires interference.
Accordingly, the order dated 10.05.2018 passed in W.P.(C) No. 5596 of 2013 is hereby quashed and set aside.
23. In consequence thereof, the writ petition being W.P.(C) No. 5596 of 2013 is allowed.
24. The order cancelling the PDS licence as also the order passed by the appellate authority in R.M.A. No. 43 of 2010-11 and the order passed by the
revisional authority dated 24.05.2013 in R.M.P. No. 07 of 2012-13 are hereby quashed and set aside.
25. It has been informed to this Court that as yet the aforesaid licence has not been granted in favour of any third party rather it has been attached in
the name of different licencee.
26. Since it has been informed to this Court that the PDS licence in question has not been granted in faovur of any third party, if that be so, the PDS
licence of the writ petitioner is required to be restored in his favour.
27. This Court, therefore, hereby, directs the licensing authority to consider the veracity of the fact that the PDS licence in question has not been
issued in favour of any third party so as to take decision for restoration of the PDS licence in favour of the writ petitioner within a period of four
weeks from the date of receipt of copy of this order.
The licensing authority is further directed, in the circumstances if the PDS licence has already been issued in favour of any third party, the same be
communicated the same to the writ petitioner giving therein the details of the licence along with the name of the licencee and the date of its issuance.
28. In the result, the instant intra-court appeal stands allowed with the above observation and direction.
29. The original record is directed to be handed over to the learned State counsel for its onward transmission to the concerned authority.
