IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.16154 of 2010
Naresh Choudhary, son of Sri Kailash Choudhary, resident of village-
Powatand, P.S. Fatehpur, District-Gaya.
.....Petitioner.
Versus
1. The State of Bihar
2. The Sub-Divisional Officer, Sadar, Gaya.
..... Respondents.
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02/ 08.11.2010 This writ petition has been filed by the petitioner
challenging the order of cancellation of his licence for running fair
price shop on the same grounds on which his licence had been
earlier suspended by the authorities concerned.
2. The point raised by learned counsel for the petitioner
is that a punishment of suspension of licence has already been
given to him and hence for the same offence another punishment
of cancellation of his licence cannot be legally given to him by the
authorities concerned in view of the provisions of the Central
Government, Public Distribution System (Control) Order, 2001
(hereinafter referred to as `the Central Control Order of 2001′ for
the sake of brevity ) followed by the Government of Bihar, Food
Supply & Commerce Department, Public Distribution System
(Control) Order, 2001, notified vide G.S.R. 1 dated 20.02.2007
(hereinafter referred to as `the Bihar Control Order of 2001 for the
sake of brevity).
3. On the other hand, learned counsel for the
respondents vehemently opposed the contention of learned counsel
for the petitioner and stated that the licence was granted to the
petitioner under the Bihar Trade Articles (Licences Unification)
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Order, 1984 (hereinafter referred to as `the Bihar Licensing Order
of 1984′ for the sake of brevity) and hence the action for
suspension/cancellation of such licence would be governed only by
its provisions. Relying upon Clause 11 of the Bihar Licensing
Order of 1984, it was claimed that the suspension of licence of the
petitioner was merely interim measure during the proceeding for
cancellation of such licence and hence there was no bar in
cancelling the licence of a licensee, which had already been
suspended. He further claimed that the Bihar Licensing Order of
1984 was concerned with the licensing matter, whereas, Central
Control Order of 2001 and Bihar Control Order of 2001 were with
respect to Public Distribution System and the latter cannot legally
govern the former. Learned counsel for the respondents also relied
upon a decision of the Single Bench of this Court in case of
Punsraj Begawani & another vs. The State of Bihar & another,
reported in 1987 P.L.J.R. 1150. Finally learned counsel for the
respondents stated that the statutory appeal has been provided
under Clause 28 of the Bihar Licensing Order of 1984 as well as
under Clause 15 of the Bihar Control Order of 2001 and hence this
writ petition is not maintainable on that score also.
4. Similar matters have been considered vide order
dated 14.07.2010 by this Court in a batch of cases in case of
Pradhuman Chaudhary vs. The State of Bihar & Ors. (C.W.J.C.
No. 6966 of 2008) and analogous cases, in which it has been
specifically held that after coming into force of the Bihar Control
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Order of 2001, the provisions of the Bihar Licensing Order of 1984
would not be applicable to the fair price shop under the Public
Distribution System and for all practical purposes, the provisions
of the Bihar Control Order of 2001 would be applicable. It has also
been held that after coming into force of the Bihar Control Order
of 2001 it was for the authorities to select either to suspend the
licence of the petitioner for 90 days or to cancel it at the very
initial stage. Once the punishment of suspension had been chosen
by the authority for the petitioner, there was no occasion or
jurisdiction for him to pass any further order of punishment for the
same offence against the petitioner, namely cancellation. Thus the
impugned order of the respondent-authority cancelling licence of
the petitioner after 2007 apart from being illegal and perverse, is
also absolutely without jurisdiction and hence it cannot be legally
allowed to stand.
5. From Annexure-2, it is quite apparent that criminal
case lodged against the petitioner is for offences punishable under
Sections 467, 468, 471, 419, 420, 406, 409 and 34 of the Indian
Penal Code. No case is lodged against the petitioner for any
offence punishable under the provision of Essential Commodities
Act, 1955 as required under Clause 7(iii) of the Bihar Control
Order of 2001.
6. In the light of the aforesaid special circumstances as
well as the aforesaid decision of this Court and the specific
provisions of law as discussed above, order of the respondent-
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authority cancelling licence of the petitioner, which is under
challenge in this writ petition, is hereby quashed. It is further
directed that the order of the authority regarding suspension of the
licence of the petitioner would be limited to ninety days only from
the date of suspension, whereafter the order of suspension of the
licence of the petitioner would cease to have any legal effect.
7. With the aforesaid directions/observations, this writ
petition is allowed.
(S. N. Hussain, J.)
Sunil