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2016 DIGILAW 1282 (PAT)

Ganesh Traders v. State of Bihar

2016-09-27

VIKASH JAIN

body2016
JUDGMENT : VIKASH JAIN, J. 1. Heard learned counsel for the petitioner and learned counsel for the respondents. The present writ petition has been filed for quashing the letter dated 4.9.2012 bearing memo No. Sta/Nepal/2012, 7906 issued by the respondent Joint Secretary, Department of Home, Govt. of Bihar, Patna, and the decision dated 24.8.2012 taken in a meeting under Chairmanship of the Principal Secretary, Department of Home, Government of Bihar, Patna wherein restrictions have been imposed under the Fertilizer Control Order on the existence of godowns within 5 km. from the international border; and for connected reliefs. 2. Learned counsel for the petitioner submits that the minutes of the meeting dated 4.9.2012, as well as the consequential order dated 17.9.2012 (Annexure-2 series) passed by Superintendent of Police, Araria directing, inter alia, that no licence holder would now be permitted to keep a godown within a distance of 5 km. from the border, and that strict action would be taken against the defaulters, are wholly arbitrary and without jurisdiction. 3. It is submitted that any such restriction could only be imposed by the Central Government through notification in the Official Gazette as contemplated in Section 3(1) and Section 3(5) of the Essential Commodities Act, 1955. It is submitted that the issue is squarely covered by an order of a co-ordinate Bench of this Court in the case of New Balaji Fertilizer and Ors., vs. The State of Bihar and Anr. 2008 (2) PLJR 395 , wherein similar orders passed by the District Agricultural Officer, Araria, prohibiting persons from doing business in fertilizer within 2 km. of the Indo-Nepal border were quashed. 4. Learned counsel for the respondents relies on the counter affidavit to oppose the writ petition. However, apart from justifying the necessity for imposing the restrictions, the stand of the petitioner questioning the jurisdiction of the State officials to impose the restrictions in question, has not been controverted. 5. Having heard the parties and on a careful consideration of the materials on record, this Court finds merit in the writ petition. In view of the provisions of Section 3 of the Essential Commodities Act, it is clear that it is the Central Government alone which is competent to impose restrictions of the nature sought to be done by the impugned orders, and the impugned orders passed by the State Officials are thus unauthorized in law. In view of the provisions of Section 3 of the Essential Commodities Act, it is clear that it is the Central Government alone which is competent to impose restrictions of the nature sought to be done by the impugned orders, and the impugned orders passed by the State Officials are thus unauthorized in law. Learned counsel for the respondents has also not been able to satisfy this Court that the decision in the case of New Balaji Fertilizer (supra) is not applicable in the present case. The mere fact that the reported decision deals with a case imposing restrictions on carrying on business whereas the present case prohibits the maintenance of godowns in the Indo-Nepal border areas, makes little difference and the two cases cannot be distinguished on that score. In the above circumstances, the impugned orders dated 4.9.2012 (Annexure-3) and 17.9.2012 (Annexure-2 series) are hereby quashed and the writ petition stands allowed.