Patna High Court - Orders
Md. Anayat Karim @ Anayat Karim vs The State Of Bihar & Ors on 11 August, 2014
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13670 of 2013
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1. Dayanand Mishra S/O Jagannath Mishra Residence of Vill- Garmubhagh,
Gram Panchayat- Madanpur, P.S.- Araria, Distt.- Araria
.... .... Petitioner/s
Versus
1. The State of Bihar through the Secretary, Food and Consumer Protection
Department, Old Secretariat, Patna
2. The Collector-Cum-District Magistrate, Araria, District- Araria
3. The Sub-Divisional Officer, Araria District Araria
.... .... Respondent/s
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with
Civil Writ Jurisdiction Case No.12815 of 2014
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1. Md. Anayat Karim @ Anayat Karim Son of Hasibun Rahman resident of
village - Majgama Gram Panchayat Bhuna, P.S. Mahalgaon, District -
Araria
.... .... Petitioner/s
Versus
1. The State of Bihar through the Secretary Food and Consumer Protection
Department, Old Secretariat, Patna
2. The Collector - Cum - District Magistrate, Araria
3. The Sub - Divisional officer, Araria, District - Araria
.... .... Respondent/s
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with
Civil Writ Jurisdiction Case No.13081 of 2014
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Md. Faiyaz Alam
.... .... Petitioner/s
Versus
The State of Bihar & Ors
.... .... Respondent/s
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Appearance :
(In CWJC No.13670 of 2013)
For the Petitioner/s : Mr. Md. Ziaul Quamar, Adv.
For the Respondent/s : Mr. Manoj Priaydarshi, Adv.
(In CWJC No.12815 of 2014)
For the Petitioner/s : Mr. Md. Ziaul Quamar, Adv.
For the Respondent/s : Mr. Manikant Mishra, Adv.
(In CWJC No.13081 of 2014)
For the Petitioner/s : Mr. Md. Ziaul Quamar, Adv.
For the Respondent/s : Mr. Yogendra Pd. Sinha, Adv.
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
2 Patna High Court CWJC No.13670 of 2013 (2) dt.11-08-2014
2/6
ORAL ORDER
2 11-08-2014Since all these writ petitions raise issues which are identical hence they have been posted together for analogous hearing and disposal.
The petitioners in the three writ petitions are holding licence for running shop under the Public Distribution System issued under the Bihar Trade Articles (Licenses Unification) Order, 1984 (hereinafter referred to as the 'Unification Order'). In each of the cases the licence of these petitioners were cancelled by the licensing authority i.e. Sub Divisional Officer inter alia on grounds of non-approval of their licenses by the District Selection Committee and the appeal preferred by these petitioners after being considered by the appellate authority i.e. the District Magistrate, the cases were remanded for fresh consideration by the licensing authority for grant of fresh licence if the holders of licence fulfilled all eligibility criteria. Since identical orders of cancellation and remand are subject matters of these writ petitions hence they have been heard analogous. The individual details of the writ petitioners are as follows:
(1) C.W.J.C. No. 13670 of 2013 The licence of the petitioner bearing Licence No. 57A of 2006 was cancelled by the Sub-Divisional Officer, Araria vide 3 Patna High Court CWJC No.13670 of 2013 (2) dt.11-08-2014 3/6 order passed on 20.12.2007 and the appeal against the said order preferred by the petitioner bearing District Appeal No. 130 of 2007-08 was disposed of by the District Magistrate-cum-
Collector, Araria vide order passed on 12.2.2008.
(2) C.W.J.C.No.12815 of 2014 The licence of the petitioner bearing Licence No. 38J of 2006-07 was cancelled by the Sub-Divisional Officer, Araria vide order passed on 20.12.2007 and the appeal against the said order preferred by the petitioner bearing District Appeal No. 195 of 2007-08 was disposed of by the District Magistrate-cum- Collector, Araria vide order passed on 12.2.2008.
(3) C.W.J.C.No.13081 of 2014 The licence of the petitioner bearing Licence No. 4J of 2006 was cancelled by the Sub-Divisional Officer, Araria vide order passed on 20.12.2007 and the appeal against the said order preferred by the petitioner bearing District Appeal No. 18 of 2007- 08 was disposed of by the District Magistrate-cum-Collector, Araria vide order passed on 12.2.2008.
It is an admitted position that the licenses of all these petitioners were granted under the 'Unification Order' and which vests the Sub-Divisional Officer with powers to grant licenses. There was no stipulation in the Unification Order regarding 4 Patna High Court CWJC No.13670 of 2013 (2) dt.11-08-2014 4/6 seeking approval of the District Level Committee. The Central Government had issued a Public Distribution System (Control) Order, 2001 for regulating the licence issued under the Public Distribution System. However the same was notified in the State of Bihar vide GSR dated 20.2.2007 under the nomenclature of Fair Price Shop Order, 2007. Clause-2 of the Fair Price Shop Order, 2007 requires the District Level Committee to approve the licenses recommended by the licensing authority i.e. the Sub-Divisional Officer but while making such stipulation, Clause-2 also saves all such licenses which were issued prior thereto and were existing on the date when the order came into force i.e. 20.2.2007. It is not in dispute that the licenses of these petitioners were issued prior to the enforcement of the Fair Price Shop Order, 2007 containing such Clause and by virtue of Clause-2 the licenses issued by the licensing authority under the provisions of the 'Unification Order' stood saved. Perusal of the order of cancellation passed by the licensing authority as impugned in the respective writ petitions manifests that even when there are no complaints as regarding functioning of these petitioners nor they have been found allegedly violating the conditions of licenses, yet the licenses have been cancelled solely on the ground of lack of approval by the District Level Committee.
5 Patna High Court CWJC No.13670 of 2013 (2) dt.11-08-20145/6
The stand of the State in support of these impugned orders is relying upon some circular dated 31.8.2006 requiring an approval by the District Level Committee. Thus even when the 'Unification Order' did not contain any such stipulation requiring approval by the District Level Committee, such requirement which is foreign to the stipulations was sought to be introduced through a departmental circular and it is in the light of these departmental circulars that the orders impugned have been passed. The orders impugned on the face of it are illegal and cannot be upheld.
These very issues fell for consideration in a case arising from CWJC No.14525 of 2008 (Ravi Shankar Mishra vs. The State of Bihar) and a coordinate Bench of this Court vide judgment and order passed on 4.11.2011 taking note of the stipulations as existing on the date under the 'Unification Order' and taking note of the fact that there was no such stipulation in the 'Unification Order' requiring approval by the District Level Committee and which stipulation was only introduced on 20.2.2007, was pleased to set aside the order of cancellation of licenses. The order of learned Single Judge was tested by the State in L.P.A No. 292 of 2013 and which also was dismissed vide judgment and order passed on 14.3.2013.
In view of the law settled by this Court which has attained 6 Patna High Court CWJC No.13670 of 2013 (2) dt.11-08-2014 6/6 finality and taking into consideration the lawful circumstances existing on the date of grant of licenses to these petitioners, it leaves no room for confusion that the orders impugned in the respective writ petitions cannot be upheld and order of cancellation of licenses as well as the order passed in appeal by the appellate authority as impugned in the respective writ petitions cannot be upheld and are accordingly set aside. The writ petitions are allowed.
The licenses of the respective writ petitioners stands restored.
(Jyoti Saran, J) Bibhash/-
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