IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6966 of 2008 Pradhuman Chaudhary, son of late Krishnchander Chaudhary, resident of village +P.O.Nawanagar, P.S. Bidupur, District Vaishali (Hajipur). ….. Petitioner, versus 1. The State of Bihar through the Secretary Food and Consumer Protection Department, Old Secretariat, Patna. 2. The District Magistrate, Vaishali, District Vaishali (Hajipur). 3. The Sub-Divisional Officer, Hajipur, District Vaishali. …. Respondents with CWJC No.14791 of 2008 Sukan Singh, son of late Kapil Deo Singh, resident of Village +P.O. Parsawan, P.S. Pandarak, District Patna …. Petitioner versus 1. The State of Bihar through the Secretary Food and Consumer Protection Department, Old Secretariat, Patna. 2. The Sub-Divisional Officer, Barh, District Patna ……… Respondents with CWJC No.15544 of 2008 Surendra Prasad Singh, son of late Laljeet Singh, Resident of At +P.O. Mastthu, P.S. Belchhi, District Patna. ….. Petitioner versus 1. The State of Bihar through the Secretary Food and Consumer Protection Department, Old Secretariat, Patna. 2. The District Magistrate, Patna District Patna 3. The Sub-Divisional Officer, Barh, District Patna. …….. Respondents with CWJC No.15676 of 2008 Sudhir Prasad Singh, son of Sri Janardan Prasad Singh, Resident of At+P.O. Mastthu, P.S. Belchchi, District Patna …….Petitioner Versus 1. The State of Bihar through the Secretary Food and Consumer Protection Department, Old Secretariat, Patna. 2. The District Magistrate, Patna District Patna 3. The Sub-Divisional Officer, Barh, District Patna. …Respondents with CWJC No.16529 of 2008 2 Awadhesh Prasad, son of late Hari Ram, resident of Village Redi, P.O. Chamarbigha, P.S. Hilsa,District Nalanda. …… Petitioner. Versus 1. The State of Bihar through the Secretary Food and Consumer Protection Department, Old Secretariat, Patna. 2. The District Magistrate, NalandaDistrict Nalanda 3. The Sub-Divisional Officer, Hilsa, District Nalanda …. Respondents with CWJC No.18061 of 2008 Shiv Kumar Mahto , son of late Ladoo Lal Mahto, Resident of village +P.O. Phulhara, P.S. Singhia, District Samastipur. …… Petitioner Versus 1. The State of Bihar through the Secretary Food and Consumer Protection Department, Old Secretariat, Patna. 2. The District Magistrate, Samastipur District Samastipur 3. The Sub-Divisional Officer, Rosera, District Samastipur …..Respondents with CWJC No.18465 of 2008 Ramnath Yadav, son of late Jhumak Yadav, resident of Muhalla Gosi Tola, P.S. Nathnagar, District Bhagalpur ……..Petitioner versus 1. The State of Bihar through the Secretary Food and Consumer Protection Department, Old Secretariat, Patna. 2. The Sub-Divisional Officer, Sadar Bhagalpur, District Bhagalpur. …. Respondents with CWJC No.18474 of 2008 Md. Sahid, son of late Md. Qadir Bux, resident of village Kabirpur, P.O. & P.S. Nathnagar, District Bhagalpur ….. Petitioner versus 1. The State of Bihar through the Secretary Food and Consumer Protection Department, Old Secretariat, Patna. 2. The Sub-Divisional Officer, Sadar Bhagalpur, District Bhagalpur. …Respondents with CWJC No.18505 of 2008 3 Smt. Kailashi Devi, wife of late Gopal Lal, resident of Mohalla K.V. Lal Road, P.S. Nathnagar, District Bhagalpur …. Petitioner versus 1. The State of Bihar through the Secretary Food and Consumer Protection Department, Old Secretariat, Patna. 2. The Sub-Divisional Officer, Sadar Bhagalpur, District Bhagalpur. ……Respondents with CWJC No.18518 of 2008 Kailash Prasad Sah, son of late Hari Sah, resident of Mohalla Hazari Sah Lane, P.S. Nathnagar, Distt. Bhagalpur ….. Petitioner versus 1. The State of Bihar through the Secretary Food and Consumer Protection Department, Old Secretariat, Patna. 2. The Sub-Divisional Officer, Sadar Bhagalpur, District Bhagalpur. ……Respondent with CWJC No.18875 of 2008 Abdul Rajjak Ansari, son of late Md. Safiq, resident of Mohalla Bhairo Lal Lane(Champanagar), P.S. Nathnagar, District Bhagalpur. ….. Petitioner versus 1. The State of Bihar through the Secretary Food and Consumer Protection Department, Old Secretariat, Patna. 2. The Sub-Divisional Officer, Sadar Bhagalpur, District Bhagalpur. ……Respondents with CWJC No.18876 of 2008 Bal Krishna Yadav, son of late Hari Gop, resident of Mohalla Sardarpur, P.O. Champanagar, P.S. Nathnagar, District Bhagalpur. …… Petitioner versus 1. The State of Bihar through the Secretary Food and Consumer Protection Department, Old Secretariat, Patna. 2. The Sub-Divisional Officer, Sadar Bhagalpur, District Bhagalpur. …..Respondents with CWJC No.18952 of 2008 4 Yadubansh Prasad Singh, son of late Dayali Singh, Resident of Mohalla Raibahadur Devi Prasad Dhandhania Lane, P.O. Sugaganj, P.S. Kotwali, Bhagalpur, District Bhagalpur …..Petitioner versus 1. The State of Bihar through the Secretary Food and Consumer Protection Department, Old Secretariat, Patna. 2. The Sub-Divisional Officer, Sadar Bhagalpur, District Bhagalpur. …..Respondents with CWJC No.58 of 2009 P. K. Dey, son of Shri Shashank Shekhar Dey, resident of Mohalla Masakchak, P.S. Adampur Kotwali, District Bhagalpur. …. Petitioner versus 1. The State of Bihar through the Secretary Food and Consumer Protection Department, Old Secretariat, Patna. 2. The District Magistrate, Bhagalpur, District Bhagalpur 3. The Sub-Divisional Officer, Sadar Bhagalpur, District Bhagalpur. …..Respondents with CWJC No.522 of 2009 Md. S.A. Khalid @ S.A. Khalid, son of late S.A.Saeed, Resident of village Kabipur, P.O.&P.S. Nathnagar, District Bhagalpur. …. Petitioner versus 1 The State of Bihar through the Secretary Food and Consumer Protection Department, Old Secretariat, Patna. 2. The Sub-Divisional Officer, Sadar Bhagalpur, District Bhagalpur. …..Respondents with CWJC No.9004 of 2009 Rita Bharti, wife of Sri Bijendra Prasad Yadav, resident Of village Mahaisua, P.O. Pals Thana (Udakusunganj), P.S. Uda Kishunganj, District Madhepura. …. Petitioner versus 1. The State of Bihar 2. The Commissioner, Purnea 3. The District Magistrate, Madhepura 4. The Sub-Divisional Magistrate, Udakishunganj, Kishunganj, District Madhepura. 5 5. Block Supply Officer, Udakishunganj, District Madhepura …..Respondents with CWJC No.9036 of 2009 Karuna Devi, wife of Sri Ghanshyam Kumar, resident Of village Udakishunganj, P.O. Uda Kishunganj, P.S. Udakishunganj, District Madhepura versus 1. The State of Bihar 2. The Commissioner, Purnea 3. The District Magistrate, Madhepura 4. The Sub-Divisional Magistrate, Udakishunganj, Kishunganj, District Madhepura. 5. Block Supply Officer, Udakishunganj, District Madhepura …..Respondents with CWJC No.18989 of 2008 Binod Kumar, son of late Ram Kishun Singh, resident Of Mohalla Modiar Tola, P.S. Mokama, District Patna. …. Petitioners versus 1. The State of Bihar through the Secretary Food and Consumer Protection Department, Old Secretariat, Patna. 2. The District Magistrate, Patna District Patna 3. The Sub-Divisional Officer, Barh, District Patna. ….Respondents with CWJC No.602 of 2009 Ashok Kumar Singh, son of late Parmanand Singh, Resident of village Antapur, P.O. Nakuni, P.S. Hasanpur District Samastipur. ….. Petitioner. versus 1. The State of Bihar through the Secretary Food and Consumer Protection Department, Old Secretariat, Patna. 2. The District Magistrate, Samastipur District Samastipur 3. The Sub-Divisional Officer, Rosera, Distt. Samastipur …. Respondents with CWJC No.9631 of 2009 Rajnikant Prasad, son of late Baijnath Prasad, resident of Muhalla Badi Durga Asthan (Chattipar)P.O. Khushrupur, District Patna. …. Petitioner Versus 1. The State of Bihar through the Secretary Food and Consumer Protection Department, Old Secretariat, Patna 2. The Sub-Divisional Officer, Patna City, District Patna. …Respondents. 6 with CWJC No.1873 of 2010 Bhola Bhagat, son of Jawahar Bhagar, resident of Of village Bhelwa, P.O.Sandeep, P.S. Bhawanipur (Rajdham), District Purnea. …. Petitioner versus 1. The State of Bihar through the Secretary Food and Consumer Protection Department, Old Secretariat, Patna. 2. The Collector, Purnea District Purnea 3. The Sub-Divisional Officer, Dhamdaha, District Purnea …Respondents. with CWJC No.2397 of 2010 Nagendra Kumar, son of Sri Ganauri Prasad, resident Of village Mirjapur, P.O.+P.S. Fatuha,District Patna ….Petitioner Versus 1. The State of Bihar through the Secretary Food and Consumer Protection Department, Old Secretariat, Patna. 2. The Collector, Patna District Patna. 3. The Sub-Divisional Officer, Patna City, District Patna. …Respondents. with CWJC No.4622 of 2010 Shivaji Gupta, son of late Moti Gupta, resident of village Chikni, P.O. Chikni, Phulkaha, P.S. Gamharia,District Madhepura. … Petitioner versus 1. The State of Bihar through the Secretary Food and Consumer Protection Department, Old Secretariat, Patna. 2. The Collector, Madhepura District Madhepura 3. The Sub-Divisional Officer, Madhepura District Madhepura. …Respondents. with CWJC No.16821 of 2009 Dashrath Paswan, son of late Punyee Paswan, resident Of village Parmanandpur, P.S. Sri Nagar, District Madhepura …. Petitioner versus 1. The State of Bihar. 2. The District Magistrate, Madhepura 3. The Sub-Divisional Officer, Madhepura 4. The Assistant District Supply Officer-cum-District Supply Officer, Madhepura. 7 5. The Block Supply Officer, Kumar Khand, District District Madhepura. …Respondents. ---------- For the Petitioners : M/s Shree Kant Labh, Sanjeev Kumar Mishra& Rajeev Kumar Labh Advocates. For the Respondents : M/s J.P. Karn, A.A.G. IX,. N.K. Sinha, A.A.G. X, Ram Bilash Mahto, A.A.G.VIII, Arshad Alam, S.C. IV, Anil Kumar Jha, G.A.II, Gajendra Nath Ojha, A.C. to G.A.II, Ranjan Kumar, A.C. to G.A.IX, A.K. Dubey, A.C. to A.A.G. IX, Sanjay Kumar, AC to A.A.G.X, Chandan Kr. Verma, G.P. Ojha, AC to G.A.VII, Dhurendra Kumar, AC to SCV, Rakesh Kr. Sinha,AC to AAG VII, Manoj Kumar, AC to G.A. X Fakhruddin Ali Ahmad,AC to SCIV, Sunil Kr. Ravi, A.C. to G.P. 15, Abinash Kr, AC to G.P.I, S.K. Mallick,AC to SC XI, -------- 06/ 14.07.2010 All these cases have been heard together and are being decided by this common order as in all of them the petitioners have challenged the orders of cancellation of their respective licences for running fair price shops on the same grounds on which their respective licences had been earlier suspended by the authorities concerned. 2. The point raised by learned counsel for the petitioners in all the aforesaid cases is that a punishment of suspension of licence has already been given to them and hence for the same offence another punishment of cancellation of their licences cannot be legally given to them by the authorities concerned in view of the provisions of the Central Government Public Distribution System (Control) Order, 2001 ( hereinafter referred to as 8 `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 in all the aforesaid cases vehemently opposed the contention of learned counsel for the petitioners and stated that the licences were granted to the petitioners under the Bihar Trade Articles (Licences Unification) 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 licences 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 licences of the petitioners were merely interim measures during the proceeding for cancellation of such licences and hence there was no bar in cancelling the licence of such licensees, 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 9 Control Order of 2001 and hence these writ petitions are not maintainable on that score also. 4. Clause 11 of the Bihar Licensing Order of 1984 was with respect to suspension and cancellation of licence, which provided as follows:- (i) If any licensee or his agent or servant or any other person acting on his behalf contravenes any of the terms and conditions of the licence, then without prejudice to any other action that may be taken against him under the Essential Commodities Act, 1955 (Central Act 10 of 1955) his licence may be cancelled or suspended with regard to one or more trade articles by an order in writing of the Licensing Authority and an entry will be made in his licence relating to such suspension or cancellation. (ii) No order of cancellation shall be made under this clause unless the licensee has been given a reasonable opportunity stating his case against the proposed cancellation but during the pendency or in contemplation of proceedings of cancellation of licence, the licence can be suspended for a period not exceeding 90 days without giving any opportunity to the licensee of stating his case. Such suspension shall be limited only to those trade articles regarding which contravention has been made by the licensee. 5. Under the aforesaid provision of the Bihar Licensing Order of 1984 licence of such a dealer could have been suspended for an interim period during the pendency of a proceeding against the licensee, which might culminate in cancellation of his licence, but even that period of suspension was to be limited to ninety days only, whereafter the order of suspension of licence would not have any legal effect. This was also settled by a plethora of decisions of this Court including the judgment in case of M/s Yugal Kishore Rastogi vs. The State of Bihar, reported in 1988 PLJR 571. 6. However, in the year 2001 the Central Government thought 10 it necessary and expedient to exercise its powers conferred by section 3 of the Essential Commodities Act, 1955 and to bring the Central Control Order of 2001 for maintaining supplies and securing availability and distribution of essential commodities under the Public Distribution System. Clause 7 thereof was with respect to licensing. The said Central Control Order of 2001 also contained an Annexe having several paragraphs explaining in detail various aspects thereof. 7. Subsequently in view of Clause 7 of the above mentioned Central Control Order of 2001 read with section 3 of the Essential Commodities Act, 1955, the Bihar Government with prior concurrence of Government of India brought into existence Bihar Control Order of 2001 and vide G.S.R. No. 01 dated 20.02.2007with respect to issuance of licence, suspension/cancellation, terms and conditions and regulating the sale and distribution of essential commodities through Fair Price Shops under Public Distribution System. 8. Clause 7 of the Bihar Control Order of 2001 is with respect to suspension and cancellation of licence and provides as follows :- (i) In the light of Hon’ble Supreme Court order in Civil Writ Petition 196/2001, action will be taken against the licensee in following situation:- Licensees, who (a) do not keep their shops open throughout the month during the stipulated period, (b) fail to provide grain to BPL families strictly at BPL rates and no higher, (c) keep the cards BPL household with them, (d) make false entries in the BPL cards, (e) engage in black marketing or siphoning away grains to 11 the open market and hand over such ration shops to such other person/organizations shall make themselves liable for cancellation of their license. The concerned authorities/functionaries would not show any laxity on the subject. (ii) If any licensee contravenes the provision, terms of the licence, duties responsibilities and order of State Government then the Licesing Authority shall suspend/cancel the licence by a written order. (iii) If F.I.R. is lodged against FPS dealers for contravention of an order issued under Essential Commodities Act, 1955, their licence shall be suspended till the matter is pending before the Court of Law. (iv) It shall be necessary to ask show cause by the Licensing Authority to licensee before suspending licence. Licensee will be given a reasonable opportunity stating his case against the proposed cancellation. (v) Suspension of licence shall be for a maximum period of ninety days. In the mean time records relating to suspension of licence should be sent to the District Level Selection Committee within a fortnight from the date of suspension of licence. The Selection Committee after due enquiry shall recommend for revocation of suspension. The Licensing Authority shall act accordingly. (vi) Allocation to FPS dealers shall not be discontinued under any circumstance. In case of suspension or cancellation of licence allocation to a FPS dealer should be tagged to the nearest FPS dealer. (vii) After suspension of licence of the Licensee the consumers shall be tagged to the nearest FPS shops by the respective Block Supply Officer/In charge Block Supply Officer/Supply Inspector. (viii)In general circumstances the tagging of consumers shall not be changed. (ix) All Consumers of APL, BPL and Antyodaya living within the area earmarked for a FPS dealer should be tagged to such a FPS dealer. 9. The above noted Clause-7 of the Bihar Control Order of 2001 clearly shows that unlike Clause-11 of the Bihar Licensing Order of 1984, there is no provision of interim suspension without show-cause. In the 12 said Bihar Control Order of 2001 suspension is by way of punishment after show-cause, whereas, cancellation is another punishment after show-cause. It is further clear from a reading of the said provision that suspension under the said Order cannot be given by way of any interim measure until the final order of cancellation is passed, rather both the punishments are distinct and separate. 10. No doubt licences were originally granted to the petitioners by the authorities concerned under the Bihar Licensing Order of 1984 , but subsequently on the basis of the Central Control Order of 2001, the Government of Bihar notified the Bihar Control Order of 2001, in which the procedure for issue of licences etc. was specifically provided under Clause 1, which provides as follows :- “ New licence of Fair Price Shops and its related working to licensee under Public Distribution System would be regulated through the provisions of Public Distribution System (Control) Order 2001. Licensing Authority will terminate the agreement and provide new licence in form II to existing licensee after deposit of licence fee within six months. Now, therefore, the provisions of “ Bihar Trade Articles (Licences Unification ) Order 1984, will not be applicable to fair price shops under the Public Distribution System.” 11. The said Clause specifically provides that the Bihar Licensing Order of 1984 will not be applicable to fair price shops under Public Distribution System after coming into force of the Bihar Control Order of 2001 and the licensing authority will terminate the agreement and provide new licence in form-II to the existing licensees after deposit of licence fee within six months. Although learned counsel for the respondents have submitted that it has not come into evidence as to whether the earlier 13 agreements/licences have been terminated and as to whether new licences in form II have been provided to the existing licensees, but the fact remains that the applicability of the provisions of the Bihar Licensing Order of 1984 has specifically been stopped immediately after coming into force of the Bihar Control Order of 2001 as per the aforesaid specific provision. Furthermore, Clause 17 of the Bihar Control Order of 2001 specifically provides that all the previously issued letters, circulars, orders or directions relating to Licence etc. including suspension or cancellation etc. will be treated to be annulled from the date of notification of the Bihar Control Order of 2001. 12. So far the reliance of learned counsel for the respondents over the decision of this Court in case of Punsraj Begawani & another (supra) is concerned, it had been passed much before coming into force of the Central Control Order of 2001 or the Bihar Control Order of 2001 and it deals only with respect to Clause 11 of the Bihar Licensing Order of 1984, which is not applicable now due to coming into force of the subsequent Control Orders of 2001 as discussed above. Hence, the said decision is not applicable to the facts and circumstances of this case. 13. In the said circumstances, it is quite apparent that after coming into force of the Bihar Control Order of 2001, the provisions of the Bihar Licensing Order of 1984 would not be applicable to the fair price shops under the Public Distribution System and for all practical purposes, the provisions of the Bihar Control Order of 2001 would be applicable. 14. Hence after coming into force of Bihar Control Order of 2001, it was for the authorities to select either to suspend the licences of the 14 petitioners or to cancel them at the very initial stage. Once the punishment of suspension had been chosen by the authorities for the petitioners, there was no occasion or jurisdiction for them to pass any further order of punishment for the same offence against the petitioners, namely cancellation. Thus the impugned orders of the respondents-authorities canceling licences of the petitioners after 2007 apart from being illegal and perverse, are also absolutely without jurisdiction and hence they cannot be legally allowed to stand. 15. In the aforesaid special circumstances as well as in absence of jurisdiction of the respondents-authorities concerned to pass the impugned orders, this Court is constrained to entertain these writ petitions and to pass appropriate orders in this regard inspite of there being provision of appeal against the impugned orders in the Bihar Control Order of 2001. 16. Considering the aforesaid admitted facts as well as the specific provisions of law discussed above, the respective orders of the respondents-authorities cancelling licences of the petitioners, which are under challenge in the above-mentioned writ petitions, are hereby quashed. It is further directed that the orders of the authorities regarding suspension of the licences of the petitioners would be limited to ninety days only from the date of suspension, whereafter the respective orders of suspension of the licences of the petitioners would cease to have any legal effect. 17. With the aforesaid directions/observations, all the above- mentioned writ petitions are allowed. MPS/ ( S. N. Hussain, J. ) 15