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2006 DIGILAW 813 (PAT)

Nawin Kumar, Manorma Devi v. State Of Bihar

2006-09-08

NAVANITI PRASAD SINGH

body2006
Judgment 1. Heard. 2. The two writ applications are being heard and disposed of by a common order. 3. Heard Mr. Mrigank Mauli for the petitioners and Mr. S. Arsad Alam S.C. IV of the State. 4. The two writ applications are directed against the order passed by Sub- divisional Officer-cum-Licensing Authority under the provision of Bihar Trade Articles (Licence Unification) order, 1984, whereby and whereunder the said retail trade licence granted to the two petitioners on the ground that two petitioners alongwith the father hold one family and as per Government policy licence cannot be issued to more than one member in the family. This order he has passed undisputedly, on the direction of the Collector of the district as noticed in the impugned order itself. 5. The validity of such an order is in question before this court. It is not disputed that the petitioner in C.W.J.C. No. 15669 of 2005 is the son and petitioner in C.W.J.C. No. 15672 of 2005 is the mother. It is also not disputed that father of petitioner in the first case i.e. the husband of petitioner in the second case also has a retail trade licence. It is not in dispute that after full enquiry with regard to separation amongst three, licences were granted to the three in different years and on different dates. They had not concealed the factum of their relationship.The petitioner in the first writ application was granted retail licence in t he year 1984 and petitioner in the second writ application was granted licence in the year 2000. 6. The authorities while granting licence to the petitioner in the second writ application made through enquiry and found that since long she and her husband had been separated and they had always been living separately since then.Their places of business was in different locality. Now they were asked to show cause as to why their licences be not cancelled because it became Government policy not to grant trace licence to more than one person in a family. They filed their respective show cause clearly stating therein that licences were granted after full enquiry. There was no concealment of any fact. The fact, they are also separate, was enquired into and found correct. They had not violated any terms and conditions of the licence and as such their licences cou9ld not be cancelled. They filed their respective show cause clearly stating therein that licences were granted after full enquiry. There was no concealment of any fact. The fact, they are also separate, was enquired into and found correct. They had not violated any terms and conditions of the licence and as such their licences cou9ld not be cancelled. The proceedings remained pending and ultimately all of a sudden the impugned order was passed merely stating that there was no reason in keeping the proceedings pending when the Collector had issued direction for cancellation of their licence. If may also be noticed here that under the provision of Bihar Trade Articles (Licence Unification). Order, 1984 the Collector is the appellate authority of any order passed by Sub-divisional Officer, who is the licensing authority so far as retail dealers are concerned. These are uncontroverted facts. 7. Mr. Marigank Mauli learned counsel appearing for the petitioners has relied on a Division Bench judgment of this Court in the case of Lal Babu Prasad vs. State of Bihar since reported in 1989 PLJR 125. This Court in the said judgment has held that a restriction on grant of licence to only one member of the family would be clearly arbitrary and violative of not only Article 14 of the Constitution but also Article 19(1)(g) thereof. 8. Merely because one member of a family is holding a trade licence, other members cannot be precluded from carrying out similar business specially when members for earning livelihood are far and between. In reply Mr. Alam learned counsel appearing for the State has submitted that the decision not to grant licence under Public Distribution System to more than one member of a family has been upheld by a bench of this Court in the case of Umesh Kumar vs.The State of Bihar & Ors. since reported in 2000(3) BBCJ 114 [ 2000(2) PLJR 894 ]. 9. I have perused both the judgments before coming to the judgment. I may point out that here we are dealing with a statutory power being exercised by the Sub-divisional Officer as a Licensing Authority for grant of retail licence under the provision of Bihar Trade Articles (Licence Unification) Order, 1984.) The said Order itself lays down the condition under which a licence can be cancelled. There is the only ground which can be invoked in exercising the statutory power. There is the only ground which can be invoked in exercising the statutory power. This ground inter alia is if a licencee is convicted for an offence punishable under section 7 of the Essential Commodities Act of if he violates any terms or conditions of the licence there is no other ground available for cancellation of licence. Mr. S. Arshand Alam, learned S.C. IV could not point out any provision in the said licensing order authorising cancellation of a trade licence. On this simple ground the writ application has to be allowed. As the licence has been cancelled not on the ground of any violation of terms and conditions of the licence of any relevant ground mentioned therein but on basis of an executive direction/circulation. It is well settled that where a statute provided the power to be exercised under certain circumstances and in the manner as provided therein then all other considerations are impliedly prohibited. Executive cannot supplement or supply statutory provision. In that view of the matter the action of the licensing authority was clearly wholly without jurisdiction and the order is thus liable to be set aside on this ground alone. 10. There is yet another ground on which the order cannot be sustained. Undisputedly the order has been passed by the licensing authority in exercise of his quasi judicial function under clause 11 (1) of the Unification Order. It is equally well settled that it requires no authority that a quasi judicial authority is to act on his own. He cannot be said to have acted within his jurisdiction if he acts on direction/dictation of superior. In the present case it is not disputed that he has mechanically acted-on the direction of the Collector of the district. This renders the order void ab initio being wholly without jurisdiction. 11. Now coming to the judgment as cited at the bar, in my view, the Division Bench judgment in the case of Lal Babu Prasad (supra) applies to the facts of the case and the judgment in the case of Umesh Kumar (supra) has no application because in the said judgment itself it has been noticed in para 4 that Lal Babu Prasads case dealt with cancellation of trade licence under the Control Order which was not the case in the case of Umesh Kumar. In that view of the matter the reliance placed by Mr. In that view of the matter the reliance placed by Mr. S. Arshad Alam is misconceived and cannot be sustained. 12. I may, however, point out that once licences have been validly granted after due enquiry then the same cannot be cancelled even if there being any valid State policy. Such a policy would have a prohibitory application, that is to mean, that no licence could be granted. The licences already granted cannot be cancelled and/or revoked. It must be remembered that licence is granted to enable a person to earn his livelihood so as to support his family and he plans his future accordingly. Once licence is granted he makes commitment that cannot be withdrawn and/or cancelled except by way of penalty or any other justifiable administrative exigency referable to the statutory provision under which the licence is granted. 13. In fairness to Mr. Alam, learned Standing Counsel, I must notice his desperate objection to exercise of jurisdiction of this Court under Article 226 in view of alternative remedy, if available, by way of appeal. The answer is that this is an argument in desperation for the simple reason that statutory appeal as provided would lie to the Collector. It is the Collector who directed cancellation of licence. 14. I may not be better to refer to the decision of Ram and Shyam Company vs. State of Haryana since reported in 1985 SC 1147 wherein under similar circumstances the Apex Court has held that asking a person to go in appeal would be like asking to go from caesar to caesar. Appeal would be empty formality, I therefore, rejected the contention of the learned S.C. IV. 15. In the result these writ applications are allowed and the impugned orders cancelling the licence of the petitioners are set aside.