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2006 Supreme(Pat) 816
PATNA HIGH COURT
Navaniti Prasad Singh, J.
Nawin Kumar, Manorma Devi
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 15669 of 2005 ; 15672 of 2005 ;
Decided On : SEPTEMBER 8, 2006
Headnote:Bihar Trade Articles (Licences Unification) Order, 1984-Clause 11(1)-Cancellation of licence on the ground of government policy not to grant licence to more than one person in a family-As the licence has been cancelled not on the ground of any violation of terms and conditions of the licence or any relevant ground mentioned there in but on basis of an execution 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 can not supplement or supply statutory provision-Action of the licensing authority was clearly wholly without jurisdiction and is set aside.
(Para 9)
1989 PLJR 125- Relied upon.
2000(3) BBCJ 114- Distinguished.
Bihar Trade Articles (Licences Unification) Order, 1984-Clause I-Cancellation order has been passed by licensing authority in exercise of his quasi judicial function under clause 11(1) of Unification Order-It requires no authority-A quasi judicial authority is to act on his own-In the present case he has mechanicially acted on the direction of the Collector-This renders the order void ab initio being wholly with out jurisdiction-Moreover Government policy not to grant licence to more than one person in a family have a prohibitary application-Validly granted licence cannot be cancelled and/or revoked on the said ground.
(Paras 10 & 12)
Bihar Trade Articles (Licences Unification) Order, 1984-Clause 28-Cancellation of licence by licensing authority on the direction of Collector who is an appellate authority-Asking a person to go in appeal would be like asking to go from caisor to caisor-Appeal would be empty formality, orders cancelling the licence set aside-Writ allowed.
(Para 13)
AIR 1985 SC 1147- Relied upon.
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. 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 O
