Patna High Court
Bankey Sinha And Anr. vs State Of Bihar And Ors. on 9 November, 1989
Equivalent citations: 1990(1)BLJR163
JUDGMENT
S.B. Sanyal and R.N. Lal, JJ.
1. The debatable question in this writ petition is:
Whether in alloting quota of coal for earring on trade and business in coal, the Food and Civil Supplies Department can impose the condition that the applicant should file an affidavit along with the application form to the effect that neither the applicant nor his father or brother or any of his family member and or his partner was ever been convicted in any criminal case and/or any criminal case him been filed against him and/or pending or not ; and whether the said condition has any rationale and nexus for alloting quota of coal to a person who is a licensee of coal under the Essential Commodities Act and Orders made thereunder.
2. The petitioner have been carrying on business in eoai since the year, 1965 except for the years 1977 to 1980. On 5th July, 1988 an advertisement was published by the State Govenment for appointment of coal agents for a period of three years commencing from 1st November, 1988 to 3rd October, 1991 (Annexure-1). The relevant Clause 11(Gha) in Roman and english translation thereof are as follows:
Roman (gha) Abedak Abedan Putra ke Sath Ekk Sapath-Patra Vhi Aniwarjata Denge Ki Abedan Ya Abedan Ke Pita Ya Bhai Ya Unke Puribar Ke Koi Sodasya Tatha Unke Hissedar Abashayak Bastu Adhiniyam, 1955, Ya Kissi Forzdari Mukadma Ke Antargat Dandii Huey Hoi Ya Nahi Athaba Unke Birudh Koi Abashayak Basin Adhiniyam, 1955 Ke Tahat Ya Anya Koi Foujduri Mukadma Dayar Hua Hai Ya Nahi Athava Chalraha Hai Ya Nahi Athava Control Order Ke Tahat Unhe Nirgat Kishi Byapar Se Sambandhit Anugya Patra Rad Hnyi Hai Ya Nahi English Traslation The applicant along with the application form must submit an affidavit that the applicant or applicant's father or brother or any member of his family and his partner has been convicted under the Essential Commodities Act, 1955, or any criminal case or not or any case under the Essential Commodities Act, 1955, or any criminal case has been lodged or not or going on or not or any licence issued under the Control Order relating to any trade has been cancelled or not.
The advertisement also required, apart from others, tiling of sales tax clearance certificate.
3. The petitioner filed affidavits stating that neither they nor their lather nor their brother nor any member of their family has ever been convicted under the Essential Commodities Act nor case under the Essential Commodities Act has been filed or pending against them and their licences have never been cancelled under any Control Order-vide Annexures-2 and 2/1. The application for the petitioners' appointment were, however, rejected on the ground that the petitioners' affidavits were not in accordance with Clause 11(Gha) and further the petitioners did not enclose sales-tax clearance certificate-vide Annexure-3.
4. learned Counsel appearing on behalf of the petitioners contended that the two grounds assigned by the respondents in refusing to appoint the petitioners as coal agent are irrelevant arbitrary and capricious.
5. So far as the ground of non-filing of sales-tax clearance certificate is concerned, the authorities themselves have relaxed the condition, since in carrying on trade and business in coal no sales-tax is payable by the dealer but by the supplier of coal on the basis of first point and, therefore, the question of annexing a certificate from the Sales-tax Department does not at all arise, as would be evident from Annexure-3/1.
6. As for as the second ground is concerned, learned councel submits that 0ie petitioners having disclosed in their affidavits that no case; under the Essential Commodities Act has ever been instituted against the petitioners on their family member nor any such case is pending against the petitioners and/or against any member of their family and/or any licence under any Control Order has ever been cancelled should be treated as enough disclosure for the purpose of appointment of a coal agent. Whether there has been any criminal case filed against any member of the family ever or any criminal case pending against the members of the family has no nexus to the object and, accordingly it should be treated as irrelevant and arbitrary requirement for the purpose of appointment of coal agent.
7. After the nationalisation of coal, the dealer has to obtain allotment of coal from the State Government on prior deposite of the price of the coal The coal being specified item under the Unification Order a person desiring to deal in coal must obtain a licence from the licensing authorities as envisaged under the said Order. The order also requires furnishing of various information in the application form for the grant of licence in deciding the suitability of a person to deal in coal business. Admittedly, the petitioners having fulfilled the requirement of the application form have been granted licence to trade and do business in coal. There is a provision also for cancellation and suspension of licence under the said order.
8. The question, therefore, is whether a person who has already been granted a licence to deal in coal, is further required to pass the test laid down under Clause 11(Gha) for allocation of coal by the State Government in order to enable him to carry on trade and business in coal.
9. It is evident that the business of coal is controlled by the provisions of the Essential Commodities Act and/or orders made thereunder. The petitioners are found fit under the statute to deal in coal business having not been covicted for contravention of any order made under the Essential Commodities Act during the last three years. The petitioners have filed affidavits as required under Clause 11(Gha) disclosing the information that neither they nor any member of their family members have ever been convicted under the Essential Commodities Act nor any case under Essential Commodities Act is pending against the petitioners or against any member of their family. They have also disclosed on affidavits that at no point of time any licence granted under the Essential Commodities Act to them or any member of their family to carry on trade and business has ever been cancelled.
10. It is a settled law where the Government is dealing with the public:
...Whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and like a private individual, deal with any person it pleases, but its action must be in conformity with standard or nor in which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largess including award of jobs, contracts, quotas, licences etc., must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or nor...the action of the Government would be liable to be struck down. See Ramana v. I.A. Authority of India .
The requirement to disclose under Clause 11(Gha) of the advertisement that there has been no criminal case ever institute against the petitioners or members of their family or any partner and/or any such case is pending appears to be irrational and unreasonable norm and does not appear to have any rationale or nexus for the grant of quota of coal to a licensee under the unification Order. The norm laid down under paragraph No. 12 of the Application Form (Form-A) under the Unification Order for the grant of licence required that the person must not have suffered a conviction under the Essential Commodities Act within three years of the date of filing of the application for licence. The State Government by laying down further norms and conditions in the impugned advertisement for the purpose of allocation of quotas of coal to such dealers, encroaching and transgressing upon the statutory provisions for the exercise of citizens' fundamental right to carry on trade and business of coal he form that could at all ha imposed for the purpose of allocation of quota of coal, should be confined and structured by rational, relevant and reasonable standard, We find that the Government has departed from such standard or norm in the impugned advertisement and, therefore, that part of the advertisement which requires the petitioners to disclose institution of any criminal case against them or any member of their family ever in the post or pendency of any such case against the members of his family or partners is liable to be struck down.
11. It may, however, be stated that the petitioners have disclosed in paragraph No. 14 of the instant writ petition that they have never been convicted in any criminal case and/or subjected to any criminal case.
12. In the result, the writ petition is allowed and the respondents are directed to reconsider the petitioners' case in the light of the decision and observation made above expeditiously preferably within three months of the receipt of this order bearing is view the fact that the appointment of coal agents is only for a period of three years commencing from 1st November, 1988 to 31st October, 1991 and considerable time has already been wasted.