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2013 DIGILAW 326 (PAT)

Chulhanand Paswan v. State Of Bihar

2013-03-08

RAVI RANJAN

body2013
ORAL ORDER I have learned counsel for the petitioners and the State. 2. Petitioners seek quashing of orders dated 18.12.2007/20.12.2007 appended as Annexures 4 & 5 in the C.W.J.C. No.22216 of 2011 and 22512 of 2011 respectively, passed by the Sub Divisional Officer-Cum-Licensing Authority, Araria, whereby respective licences of the petitioners have been cancelled on the ground of having been issued without following the procedure laid down in the Public Distribution System (Control) Order, 2001 (hereinafter referred to as the “Control Order”). The petitioners also challenge the order dated 12.2.2008 passed by the Collector, Araria, by which the matter has been remitted back for fresh consideration for grant of licence but strictly according to the procedure laid down in the Control Order. 3. Learned counsel for the petitioners has raised only one short issue that the licence of the petitioners having been granted in the year 2006 itself, the same could not have been cancelled by the authorities on the ground that the same was granted without following the procedure laid down in the 2001 Control Order. 4. A counter affidavit has been filed on behalf of the State. 5. Learned counsel for the State has submitted that the concerned licence has been granted without the recommendation of the District Selection Committee. 6. It is admitted position that prior to enforcement of Public Distribution System (Control) Order, 2001, licence for retailership was being granted under Section 4 of the Bihar Trade Articles (Licence Unification) Order, 1984 (hereinafter referred to as the “Unification Order”) and, thereafter, the State authorities used to enter into an agreement with the licensee for running a Public Distribution System shop as there was no specific provision for grant of licence for running a P.D.S. shop under the Unification Order. However, subsequently Control Order, 2001 was enforced in the State of Bihar vide G.S.R. No.1 of 2007. 7. The opening paragraph of the aforesaid Control Order provides as under:- “New licence of Fair Price Shops and its related working to licensee under Public Distribution System would be regulated through the provisions of Public Distribution System (Control) Order 2001. Licensing Authority will terminate the agreement and provide new licence in form II to existing licensee after deposit of licence fee within six months.” 8. Licensing Authority will terminate the agreement and provide new licence in form II to existing licensee after deposit of licence fee within six months.” 8. From bare perusal of the aforesaid provision, it appears that so far as the earlier licensees are concerned, who were granted licences under previous Unification Order, the Licensing Authority would be required to terminate the agreement which was entered into for running a P.D.S. shop and provide them new licence in Form-II after deposit of licence fee within six months from the date of enforcement of the Control Order. Thus, the aforesaid provisions nowhere declares that their cases would be again scrutinized as to whether there is any requirement for issuance of licence of the petitioners or not in terms of the provisions engrafted in the 2001 Control Order and thereafter, only licences could be granted. Only requirement is that they would have to deposit necessary licence fee upon which the licence under Form-II would be granted to them for the reason that they were already running P.D.S. shops as stated in terms of the agreement with the State Government. The requirement of recommendation of Selection Committee was not there in the earlier Unification Order rather the same has been brought under the Control Order, 2001. Admittedly, in the case of the petitioners, the licence was granted and agreement for running P.D.S. shop was entered prior to coming of the new Control Order. Thus, the provisions thereof could not have been applied in the case of the petitioners. 9. A reference in this regard is made to a decision of a Single Bench of this Court dated 4.11.2011 passed in C.W.J.C. No.14525 of 2008 (Ravi Shankar Mishra Vrs. The State of Bihar and others) holding that the licence of the petitioners could not have been cancelled on the ground that the procedures laid down in the Control Order,2001 have not been followed including the recommendation by a District Selection Committee because that could not be made effective with retrospective effect in the year 2006. Same error has also been committed by the appellate authority while remanding the matter to the Licensing Authority as a direction has been given to scrutinize the cases of the petitioners strictly in accordance with the provisions of the Control Order, 2001. 10. Same error has also been committed by the appellate authority while remanding the matter to the Licensing Authority as a direction has been given to scrutinize the cases of the petitioners strictly in accordance with the provisions of the Control Order, 2001. 10. So far Annexure A and B which have been appended with the counter affidavit are concerned, they appear to be letters written by the State Government to the Divisional Commissioners and the District Magistrates but, the same having been issued for issuance of licence for running Public Distribution System shops in the year 2003 and learned counsel for the State failed to demonstrate or point out any specific provision, prior to enforcement of the 2001 Control Order, for grant of licence for running P.D.S. shop on the terms contained in Annexure A and B, the direction contained therein would be of no value. It is also not the case of the State that the petitioners had violated the terms and conditions of their respective agreements. 11. Accordingly, aforesaid limb of argument on behalf of the State is noted only to be rejected. 12. As a result, both the writ applications succeed. The impugned orders as contained in Annexures 4 and 5 are set aside and the Licensing Authority are directed to issue fresh licences under the Control Order in Form-II after requisite licence fee is deposited by the petitioners as per the provision which has been quoted in this order. The entire process should be completed within four weeks from the date of receipt/production of a certified copy of this order.