A licensee of foodgrains is not a person in the service of the State Government within the meaning of Section 79(b) of the Bihar Panchayat Raj Act, 1947.

N.L.Untwalia, J.

1. In response to the rule issued on this application under Article 226 of the Constitution of India, cause has been shown by the opposite party. The petitioner filed a nomination to stand as a candidate for election to the office of Mukhiya of Raghubir Ghak Rampatti and Mahinath pur Gram Panchayat in the district of Darbhanga. Mr. S. M. Kamal, a Magistrate at Madhubani, holding the delegated power of an Election Officer, scrutinised his nomination, considered the objection raised on behalf of opposite party No. 4, Achheylal Jha, and passed the following order on 6-5-1960:

"Objection that his nephew Badri Prasad Ms licence of foodgrain and he is a member of joint family. This is no ground. Hence rejected."

The order being not quite clear and unambiguous in regard to the matter of acceptance of the nomination paper of the petitioner, both the parties went before the Sub-Divisional Magistrate of Madhubani under Rule 23(4) of the Bihar Panchayat Election Rules, 1959. On 19-5-1960, the Sub-Divisional Magistrate, in exercise of his powers under that rule, allowed the objection of opposite party No. 4, and rejected the nomination paper of the petitioner as invalid. The only ground on which it has been so done is that the petitioners nephew is a licensee of foodgrains, and is joint with the petitioner. The petitioner also looks after the business carried on under the said licence in the name of his nephew, and, therefore, has got an interest in the fair price shop which is being run under that licence.

On those findings of fact, it has been held by the learned Sub-Divisional Magistrate that the petitioner "is in the service of the State Government" within the meaning of Section 79(b) of the Bihar Panchayat Raj Act, 1947 . The learned Sub-Divisional Magistrate has followed the decision of Sahai, J. in Budhari Singh V/s. Bindeshwari Prasad Singh, 1959 BLJR 187: (AIR 1959 Pat 521). The petitioner, therefore, has come up to this Court, and has prayed for an appropriate writ, or order quashing the order of the Sub-Divisional Magistrate passed on 19-5-1960.

2. In my opinion, the order of the Sub-Divisional Magistrate is erroneous in law, and the error is apparent, on its face. Merely because a person is a licensee, it cannot be held that there is relationship of master and servant between him and the State, which has granted the licence. It is well known that persons or dealers carrying oh business in various commodities had to take out licence in order to entitle them to many on the business as others, without an appropriate licence, were prohibited from carrying on business in those particular commodities. Licences were granted under the various control orders. The tests, therefore, laid down by the Supreme Court to find out as to whether there is a relationship of master and servant between the State and a particular individual in the case of Shivnandan Sharma V/s. Punjab National Bank Ltd., (S) AIR 1955 SC 404, as noticed by Sahai, J., in Budhan Singhs case, 1959 BLJR 187: (AIR 1959 Pat 521), are wanting in the case of a mere licensee. In my opinion, none of the tests laid down there, or most of them at least, is or are not to be found in the case of a licensee. To wit, the fourth test laid down is as to whether he is a person entitled to any remuneration for the work done by him. There is no finding by the learned Sub-Divisional Magistrate that either the petitioner or his nephew was entitled to any remuneration for the work done by him or them as a licensee. There is no finding that he was appointed any Government stockist, and was getting commission by way of remuneration for the work done by him. I would make reference to a recent decision of the Supreme Court in this connection in Raja Bahadur K. C. Deo Bhanj v. Raghunath Misra, AIR 1959 SC 589. There a clear distinction has been drawn between a person serving under the Government and a person "in the service of the Government," and it has been observed:

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