Patna High Court
Lal Babu Prasad vs State Of Bihar And Anr. on 4 August, 1988
Equivalent citations: AIR1989PAT68, AIR 1989 PATNA 68, (1989) PAT LJR 125, (1989) EFR 475, 1989 BRLJ 36, 1989 BBCJ 40, (1989) BLJ 397
JUDGMENT S.B. Sanyal, J.
1. This writ petition is directed for quashing the order dated 6-4-1988 passed by the Subdivisional Officer, Sardar, Arrah, contained in Annx. 4, cancelling the coal dealer's licence of the petitioner under the Bihar Trade Articles (Licences Unification) Order, 1984 (hereinafter referred to as the 'Unification Order').
2, The petitioner was granted a licence under Clause 4 of the Unification Order, on an application made by the petitioner to the licensing authority in Form 'A' along with the fee, prescribed in Schedule IV. Being satisfied, the licensing authority granted licence to the petitioner to deal in coal and the licence bears the No. 196 of 1985. The said licence was renewed from time to time. The renewal fee for the year 1987 has also been deposited by the petitioner, Vide Letter No. 1032 dated 24-11-1987 (Annx. 2).
2-A The Subdivisional Officer issued a show cause notice to the petitioner to the effect that the petitioner in obtaining the aforesaid licence suppressed the fact that his father holds a coal licence. Holding of two licences by the members of the same family amounts to deprivation of employment for unemployed educated persons and, therefore, why the licence granted to him be not cancelled. The petitioner showed cause (Annex. 3) and asserted that there has been no suppression of any fact in obtaining the coal licence. It was stated that after the petitioner did his Matriculation, he having failed to obtain any employment in order to earn his livelihood, thought of starting some business. As he had the experience of coal business, it was decided by him to obtain a licence for the same and start an independent business. He is separate from his father and the business launched is to enable him to maintain his family. The petitioner also stated that he has successfully carried on the coal business with fair reputation, with no complaint from any consumer. It was also submitted that there is no law which prevents the members of the family from carrying their independent livelihood in the same trade article. Therefore the proposed order for cancellation of his licence is without jurisdiction.
The respondent authority communicated to the petitioner by letter dated 6-4-1988 (Annex. 4) that his reply to the show cause notice is unsatisfactory, inasmuch as there is no justification for two members of the family to have licence in the same trade article under the Unification Order, and, as such, the licence granted to the petitioner is can celled.
3. Learned counsel appearing on behalf of the petitioner contended that the order cancelling the licence of the petitioner as contained in Annex. 4 is wholly without jurisdiction and falls beyond the purview of the order made under Section 3 of the Essential Commodities Act. He particularly referred to Clause 11 of the Unification Order and submitted that the power to suspend and cancel a licence is conferred on the authority when the licensee contravenes any of the terms and conditions of the licence with regard to one or more trade articles by an order in writing of the licensing authority, after giving a reasonable opportunity to the licensee to state his case against the proposed cancellation. According to the learned counsel, there is no allegation that the . petitioner has contravened any term and condition of the licence granted to him in Form 'C'. Our attention has also been drawn to Form 'A', which is an application for grant of licence. By reference to the said Form, it has been submitted that the petitioner has not suppressed any fact required to be furnished under the various serial numbers of the said Form. Therefore, there has been no suppression of any fact in obtaining the licence. Mr. Ram Nandan Prasad, learned Standing CounselNo. IV, on the other hand, contended that Form 'A' is a part of the Unification Order. Condition No. 4 of the licence in Form 'C' requires a licensee not to contravene the provisions of the order or any other law relating to the essential commodities for the time being in force. The petitioner's licence has been rightly cancelled for violation of serial No. 7 of Form 'A' which requires the applicant to answer correctly whether the applicant previously held a licence of the trade articles for which licence has now been applied for. Mr. Ram Nandan Prasad, Senior Advocate, further submitted that under Clause 4(5) of the Order, which deals with issue of license, a dealer has been authorised to obtain a licence for any one or more trade articles mentioned in Schedule I, but more than one licence for the same trade article at one place of business in the same or different names shall not be obtained. The action taken against the petitioner is, therefore, justified. ; Further, the petitioner has alternative remedy provided in the Unification Order by way of appeal before the State Government which he may be asked to exhaust before moving this Court in writ jurisdiction.
4. Prior to Bihar Trade Articles (Licences Unification) Order, 1984, licence for dealing in coal was governed by Bihar Coal Control Order, 1956. Clause 6 of the said Order provided for cancellation of licence and refusal to renew the licence not only for contravening any of the terms and conditions of the licence, but also for contravening the direction issued by the licensing authority, or if the licensee has ceased to enjoy good . reputation or fails to lift allotment of coal made by the Coal Controller. Appeal from an order of the licensing authority was provided either before the District Magistrate or the Commissioner of the Division. Similarly, there were different Orders made under Section 3 of the Essential Commodities Act for different essential commodities. In the year 1984, the present Unification Order was brought into force with respect to various essential commodities including coal. The application for licence in Form 'A' and the grant of licence in Form 'C are common to all trade articles. The Unification Order has also been made in exercise of the powers conferred under Section 3 of the Essential Commodities Act. Under Clause 2(1) of the Unification Order, "place of business" has been defined to mean any place where a dealer sells any of the trade articles held by him in stock. Under Clause 2(e), "dealer" has been defined to be a person, a firm, an association of persons or a Co-operative Society engaged in the business of purchase, sale or storage for sale of any trade articles, but does not include an agriculturist who raises or has raised crop of foodgrains, oilseeds or whole pulses, a manufacturer of sugar, and a producer of pulses and edible oil. Clauses 4(2), (3), (4) and (5) of the Unification Order envisage that a dealer may obtain a licence for any one or more trade articles mentioned in Schedule I, but it shall be necessary to obtain separate licence for each place of business. It, however, prohibits that for the same place of business, a dealer cannot have both wholesale or retail licences for the same trade article, nor he shall have more than one licence for the same trade article at one place of business in the same or different names. From a bare reading of Clause 4, it is, therefore, manifest that one person can have several licences for any one or more trade articles and he can also have both wholesale or retail licences for the same trade article, but he must have several places of business for the same. Grant of licence for the same place of business in his own name or in different names is also prohibited. Dealer could be a person, a firm or an association of persons. Therefore, a dealer cannot have more than one licence in his own name, in the name of a partnership or proprietary firm or in the name of association of persons constituting a firm, of which he is a member, at one place of business wherefrom he stores and sells goods. He can in his individual name or in different names hold a licence for the said article provided the places of business are different. This is the scheme provided for under Clause 4 of the Unification Order.
5. Clauses 10, 11 and 13 of the Unification Order deal with suspension and cancellation of licence, which, inter alia, provide that no licensee shall contravene any of the terms and conditions of the licence, and if he so does then without prejudice to any other action that may be taken against him under the Essential Commodities Act, his licence may be cancelled or suspended. There may be one or more situations where the licence of a dealer can be cancelled, namely, when the dealer is convicted by a court of law for the contravention of any Order made under Section 3 of the Essential Commodities Act, but the dealer shall be entitled to itsrestoration if the conviction is set aside in appeal or revision Condition No. 4 of the terms of the licence in Form 'C' prohibits a dealer from contravening any of the provisions of the unification Order or any other law relating to essential commodities for the time being in force. I agree wilh the learned counsel for the State that Form 'A', the application for licence, is a part of the Order and if the dealer gives out false information to any of the queries provided therein, his licence may be cancelled for suppression of facts, as it would amount to contravention of the provisions of the Unification Order. In this connection, the State relies on serial No. 7 of the application for grant of licence in form 'A', which reads as under : --
"7. Did the applicant previously hold a licence of the trade articles for which licence has now been applied for?"
It is conteded on behalf of the State that the petitioner ought to have disclosed under this serial number that his father previously held a licence to trade in coal, and since this fact has not been disclosed, he has contravened the Unification Order. This submission does not appeal to me for the reason that the applicant (the petitioner) never previously held a licence in coal. The argument of the learned counsel for the State would have some relevance if the word "family" would have been there in place of the word "applicant". Therefore, there is no question of suppression of fact as the applicant did not hold any previous licence of any trade articled This provision, in my opinion, has been made in view of Clauses 4(2), (3), (4) and (5) of the Unification Order to check and verify whether the place of business of the applicant is one and the same, as also the previous conduct of the applicant as a licensee in Essential Commodities. The reason for cancelling the licence, as would appear from Ann. 4, however, is that in view of large scale edcuated unemployed, two licences to the different members of the family is not permissible. This has nowhere been provided for either in the Essential Commodities Act or in the Unification Order in the matter of grant or for cancellation of the licence. Nor this can be so. Every citizen of Indiahas a fundamental right to carry on trade or business of his own choice subject to reasonable restriction as provided under Article 19(1)(g) of the Constitution of India. Debarring a member of the family to carry on a particular trade because another member of the family carries on the same trade, cannot be reasonable restriction. Law which purports to be restrictive of fundamental right of a citizen has necessarily to be construed in the manner which will not restrict the right to any great extent than is necessary. The word "reasonable restriction" imply intelligent care and deliberation and not an arbitrary invasion of the right. It must strike a balance between freedom guaranteed and social control permitted. Several sub-clauses of Clause 4 of the Unification Order, or for that matter, serial 7 of Form 'A' strike a balance in this regard. It is common knowledge that the members of the family like to carry on in a particular trade or family trade because of the experience gained in the said trade. This practice also obtains in the family of the professionists. Can there be law prohibiting or restricting Government employment only to one member of the family to provide employment opportunity to educated unemployed? I have tried to illustrate it only to demonstrate the voidness of the reason assigned in cancelling the licence of the petitioner. If any such law is promulgated, it would be unreasonable restriction, thus ultra vires Article 19(1)(g) of the Constitution of India.
6. I am, therefore, of the opinion that the petitioner has not violated any provision of the Essential Commodities Act, nor any provision of the Unification Order, nor the terms and conditions of the licence to justify cancellation of his licence for the reason that his father held a licence in coal. It is not the case of the State that the father and the son carry on business in coal from thesame place of business in two different names. We have come across a large number of cases of cancellation of licence for the reason assigned in Ann. 4. Therefore, we thought of disposing of the matter at the stage of admission, giving little exhaustive reasons for the guidance of the respondent State authorities. In this connection I may also refer to case C.W. J.C. No. 3314 of 1988, disposed of on 4-7-1988, wherein a Division Bench of this Court quashed a similar order of cancellation of licence.
7. As the order cancelling the licence off the petitioner as contained in Ann. 4 is per se void, inoperative and without jurisdiction, we do not feel persuaded that the petitioner should exhaust his alternative remedy before the State Government by filing an appeal. No question of alternative remedy arises where fundamental right is abridged and the impugned action is monstrous on the face of it. It is a rule of discretion and expediency, and not a rule of law, which limits the jurisdiction of High Court. It is a self-imposed restriction which can either be resorted to or relaxed in different circumstances.
8. In the result, this writ petition is allowed and I quash the order passed by respondent No. 2 cancelling the licence of the petitioner as contained in Annexure 4. The petitioner shall be entitled to carry on trade and business in coal pursuant to the licence granted to him till such time as provided in law in accordance with the terms and conditions of his licence. There will be no order as to costs.
Bhuvaneshwar Prasad, J.
9. I agree.