IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11924 of 2005 Md Safique son of late Md. Rafique. Versus THE STATE OF BIHAR & ORS ----------- For the petitioner: Mr.Khurshid Alam,Adv. For R.No.2 to 4 : Mr. Rakesh Kumar,G.A.IX For the R. No.1 : Mrs. Kalpana, A.C. to S.C.22. ----------- 5 01.12.2009. Heard the learned counsel for the parties. The petitioner has prayed for quashing part of the order dated 15.4.2005 passed by the District Judge, Bhagalpur whereby he cancelled the licence of the petitioner’s shop being not in accordance with the Khas Mahal Manual in the light of inspection made by Registrar, Establishment, Patna High Court. The petitioner has been running a shop of spectacles and pen in the court’s compound since 1960. He states that he applied for licence and was granted licence also by the then District Judge, Bhagalpur on payment of requisite fee. A copy of Challan of deposit of requisite fee dated 11.6.1971 has been annexed as Annexure-1 to this writ application. The petitioner submits that licence was renewed regularly till the year 2004-2005. A copy of renewal of licence of the shop and respective challans have been annexed as Annexure- 2 series. He states that his father was in Azad Hind Force and was granted a medal. He submits that respondent no.4, Registrar, Civil Court, Bhagalpur, served a letter on 15.4.2005 along with the office order No.10 dated 15.4.2005 to remove his shop as the same has been cancelled. The petitioner thereafter made representation before the District Judge, Bhagalpur against the impugned order canceling the licence and asking him to vacate the shop. - 2 - The orders have been annexed as Annexures3 and 3/A to the writ application. The petitioner states that Rule 29 of Bihar Government Estates ( Khas Mahal) Manual provides shops in Kutchery compounds only to the extents required for the sale of articles which are likely to be required by persons attending the courts which includes refreshment, Tobacco and materials for writing. He submits that he has been selling articles, such as pen, papers and reading glasses which are generally required by the persons attending the court. Thus his shop would come within ambit of Rule 29 of Khas Mahal Manual and consequently his licence ought not to have been cancelled. He states that the impugned order of cancellation of licence has been passed without affording show cause notice. In support of his submission the petitioner has drawn my attention to para 4 of the counter affidavit filed on behalf of respondents no.3 and 4. Counter affidavits have been filed on behalf of the High Court as well as on behalf of the District Judge. Mr Rakesh Kumar by referring Annexure-A to the counter affidavit filed by the Registrar, Establishment, Patna High Court submits that in the Inspection report, the Registrar Establishment found that some of the shops including the shop of Md.Safique were not for the purpose of catering and need of the litigant public. Name of the petitioner’s shop figured at serial no.22. The Registrar, Establishment, observed that the District Judge assured him that he will get shops of the petitioner along with those at serial no.7,11, 30 removed as they were not according to - 3 - Khas Mahal Manual. He further observed that the District Judge may be directed not to renew the licences of the aforesaid 4 licensees for the next year. In the same letter the Registrar Estt. Further observed that the District Judge may be directed to renew the licences for the next year after making flat rate increase in the settlement amount provided there is no genuine allegation against any of the licensees. Mr. Rakesh Kumar also referred to Annexure-D, which is a letter of the then District and Sessions Judge, Bhagalpur, addressed to the Registrar Administration, High Court, Patna. He further states that the shop of the petitioner has not been renewed for the Financial Year 2005- 2006 and cancellation of his licence and vacation of the shop has been ordered. Learned counsel submits that it would appear from para 7 of the writ petition that licence of the shop was renewed every year after taking the licence fee up to financial year 2004-2005 for selling spectacles and stationery materials. Mr. Khurshid Alam, learned counsel for the petitioner, states that his licence has not been renewed on account of wrong report of Ex- Nazir, Mr.Brijnandan sahay. In para 7 of the second counter affidavit it has been mentioned that the then District Judge, Civil Court, Bhagalpur, sought explanation from the said Ex-Nazir, Mr.Sahay. In his explanation dated 10.1.2003 he has stated that during the year 1995-1996, the petitioner had mentioned the nature of the shop as “Chasma”, “Pen” and “Stationery” and got the Challan passed dated 27.4.1995 and due to engagement, Mr. Sahai, Ex- Nazir has committed mistake by mentioning stamp in the Register. - 4 - It would be useful to quote para 7 of the second counter affidavit: “7. That it is also relevant to mention here that an explanation was called for from Brij Nandan Sahai. Ex. Nazir. Mr. Sahai in his explanation Dated 10.1.2003 has stated that during the year 1995-1996, the petitioner had mentioned the nature of the shop as “Chasma”, “Pen” and “Stationary” and got the challan passed (Cha- llan No.73) dated 27.4.1995 and due to enga- gement, Mr. Sahay, Ex- Nazir has committed mistake by mentioning stamp in the Register. It is also relevant to mention here On 10.1.2003 a notice was issued to Mr.Safique That he had been given licence for selling Chasma but from the year 1994-1995 to 2002-2003. He has got that the licence renewed as Stamp Vendor and the Challan has been Deposited by him.” In view of the statements made in para 7 of the second counter affidavit there cannot be any doubt that a notice was issued on 110.1.2003 to the petitioner that though he had been given licence for selling Chasma for the year 1994-1995 how there was renewal of licence for Stamp Vending. As already observed above the petitioner has stated that at no time he had renewed his licence for stamp vending. The petitioner undertakes that he would retain his shop for the sale of pen,paper and other writing materials. The fact now remains as to whether the petitioner was show caused prior to issuance of the impugned letter alongwith the office order no.10 dated 15.4.2005 of respondent no.3 contained in Annexure-3. It would appear from para 14 of the counter affidavit at page 55 filed on behalf of respondents no.3 and 4 that the licence of the petitioner’s shop had been cancelled as per the this Court’s General Letter no.1/94, letter - 5 - no.1117-56 dated 9th March, 1995 served on the petitioner and as such there was no scope of further hearing or giving any opportunity to show- cause to the petitioner. This Court is of the view that the petitioner ought to have been given show cause notice before cancelling his licence. The impugned order visits with civil consequences, as his right to run the shop existing since 1971 under valid licence has been cancelled. It is significant to note the licence of some other shops are being renewed from year to year on flat increas of rates in subsequent years. In the back drop of the discussions, this Court quashes the part of the order dated 15.4.2005 contained in Annexure-3 so far it concerns petitioner, and remits the matter back to respondent no.2 to consider the same after affording a hearing preferably within a period of two months from the date of receipt of a copy of this order. Till the decision on the issue no third party rights shall be created on the premises as was ordered earlier by way of interim measure on 28.5.2007. Anilkrsinha (Samarendra Pratap Singh,J.)