IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14921 of 2004 BHIM RAM son of late Sheochan Ram, resident of village- Belthmokri, P.S.Ramnagar, District West Champaran ......Petitioner Versus 1. THE STATE OF BIHAR through the Commissiner- cum-Secretary, Department of Food & Civil Supplies, Govt. of Bihar, Patna 2.The Collector, West Champaran, bettiah. 3.The Sub-Divisional Officer, Bagaha, West Champaran. 4.The Block Supply Officer, Ram nagar, West Champaran. 5.The Block Supply Inspector, Ramnagar, bagaha, West Champaran ......Respondents. ----------- For the petitioner : M/S. Ashok Kumar Mishra, Milind Kumar Mishra , Advocates. For the State : M/S. Syed Arshad Alam,SC-IV, Gautam Kumar Yadav, A.C. to SC-IV -------- 5 02.12.2010 Heard Mr. Ashok Kumar Mishra, learned counsel appearing on behalf of the petitioner and Mr. Syed Arshad Alam, learned standing No.4 for the respondents. The petitioner has filed the present writ petition with a prayer for quashing the order/letter dated 23.9.2003(Annexure-2) issued by the respondent Sub-divisional Officer, Bagaha, West Champaran, whereby the licence of the petitioner for running a shop under Public Distribution System has been suspended and a show cause notice was issued as to why his licnece should not be cancelled for irregularities committed by him. . He has also prayed for quashing the final order dated 10.12.2003 (Annexure-5) passed by the S.D.O. cum Licensing Authority ,whereby his 2 licences for running a shop under Public Distribution System has been cancelled by exercise of powers under the Provisions of Bihar Trade Articles (licences Unification) Order, 1984(hereinafter referred to as the Unification order 1984). The petitioner has further prayed for setting aside the order dated 24.8.2004 (Annexure-6) passed by the Respondent- District Collector, whereby his appeal bearing No.C.R.M. 13 of 2003-04 has been dismissed and the original order dated 10.12.2003 (Annexure-5) cancelling his licence has been affirmed. The short facts necessary for disposal of the present case may be indicated. The petitioner was issued licence No. 2/94 under the provisions of Unification Order, 1984 and he was running a Public Distribution Shop On the basis of certain complaints the shop of the petitioner was inspected and certain irregularities were found, whereafter by order dated 16.9.2003 his lincence was suspended and he was asked to submit show cause. Petitioner submitted show cause and denied all the allegations. However, the licensing authority passed the impugned final order dated 10.12.2003(Annexure-5) and cancelled his lincence by invoking his power under the provisions of Unification Order, 1984. Being aggrieved by the aforesaid order, 3 petitioner filed an appeal in terms of clause 28 of the Unification order ,1984, which was finally rejected by order dated 24.8.2004 (Annexure-6) passed by the respondent District Collector, which is also impugned herein. Learned counsel for the petitioner has submitted that though he was issued a licence under the provisions of Unification Order, 1984 and he was running his Public Distribution Shop on the basis of that licence, but, subsequently, the Central Government in exercise of its powers under section 3 of the Essential Commodities Act, 1955 issued Public Distribution System (Control) order, 2001 and, therefore, the licences etc. issued earlier for running P.D.S. shop under the provisions of Unification Order, 1984 shall be controlled by the new provisions. He has placed reliance on Clause 7 of the Public Distribution System( Control) Order ,2001, which is reproduced hereinbelow : “7. Licensing.- (1) The procedure for issue of licenses or authorization to the fair price shops for the distribution of essential commodities under Public Distribution System and duties and responsibilities of the fair price shop owners shall be as per paragraph 5 of the Annexe to this order. (2) The ration card holder shall not be denied the supply as per entitlement of the essential commodities, lying in stock, by the fair price shop owner under the Public Distribution System; 4 (3) The fair price shop owner shall not retain ration cards after the supply of the essential commodities. (4) Any ration card holder desirous of obtaining extracts from the records of a fair price shop owner may make a written request to such owner along with deposit of the fee specified by the State Government. (4A) Within fourteen days from the date of receipt of a request and the specified fee under sub-clause (4), the fair price shop owner shall provide such extracts of records to the ration card holder.” Paragraph 5 of the Annexe to the Public Distribution System (Control ) Order 2001 is also relevant, which is also reproduced herein below: “5. Licensing.- [ State Governments shall issue an order under section 3 of the Act for regulating the sale and distribution of the essential commodities. The licenses to the fair price shop owners shall be issued under the said order by the „designated authority‟ appointed by the State Government and the authority shall lay down the duties and responsibilities of the fair price shop owner. The responsibilities and duties of fair price shop owners shall include, inter alia:” (i) sale of essential commodities as per the entitlement of ration card holders at the retail issue prices fixed by the concerned State Government under the Public Distribution System. (ii) display of information on a notice at a prominent place in the shop on daily basis regarding (a) list of BPL and Antyodaya beneficiaries, (b) entitlement of essential commodities 5 (c) scale of issue, (d) retail issue price, (e) timings of opening and closing of the fair price shop, (f) stocks of essential commodities received during the month, (f) opening and closing stock of essential commodities and (h) the authority for redressal of grievances/lodging complaints with respect to quality and quantity of essential commodities under the Public Distribution System; (iii) maintenance of records of ration card holders (APL, BPL and Antyodaya), stock register, issue or sale register, (iv) furnishing of copies of specified documents, namely, ration card register, stock register, sale register to the office of the Gram Panchayat or Nagar Palika or Vigilance Committee or any other body authorized by State Governments for the purpose; (v) display of samples of foodgrains being supplied through the fair price shop; (vi) production of books and records relating to the allotment and distribution of essential commodities to the inspecting agency and furnishing of such information as may be called for by the designated authority; (vii) accounting of the actual distribution of essential commodities and the balance stock at the end of the month to the designated authority of the concerned State Government with a copy of the Gram Panchayat; (viii) opening and closing of the fair price shop as per the prescribed timing displayed on the notice board.” 6 Mr. Mishra, learned counsel has further submitted that in exercise of powers conferred upon the State Government, a notification G.S.R. No.1 dated 20.2.2007 was issued by the Governor of Bihar, with the prior concurrence of the Government of India laying down a procedure for issuance of licenses for running a Public Distribution System Shop. Clause 1 and 17 of the said notification dated 20.2.2007 would be relevant and are reproduced hereinbelow: “ Procedure for issue of Licences 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. 17. Appeal- (i) The pending cases against the FPS Dealers, previous to instant notification under Public Distribution System (Control) Order, 2001 would be governed by the orders in operation at the time if filing of such cases. (ii) Previously issued letters, circulars, orders, directions relating to licence, procedure of licence, licence fee, renewal fee, duplicate licence fee, conduct of licensees, working period and holiday of licensee, suspension and cancellation of the licence, search and seizure, suspension of licence/disposal of essential 7 commodities after cancellation, transfer of licence, agreement, identity card of licensee and their representative, change in business premises, consequences of conviction under Essential Commodities Act, 1955 and the appeal will be treated to be annulled from the date of notification. Although the orders, directions, letters and circulars, relating to strengthening of the Public Distribution System and various schemes shall remain applicable. (iii) The earlier circular issued from time to time with respect to Monitoring, which are not repugnant to the provisions of Public Distribution System (Control) Order, 2001 shall be continued and deemed to be notified under Public Distribution System (Control) Order, 2001. (Emphasis added) Mr. Arshad Alam, learned counsel appearing on behalf of the respondents, has vehemently opposed the writ petition and has submitted that admittedly licence to the petitioner for running Fair Price Shop under Public Distribution System was issued under the provisions of Unification order, 1984, and unless and until previous licence was terminated by virtue of the Provisions of Clause I of the notification dated 20.2.2007 and new licence would have been issued to the petitioner, he would still be governed by the provisions of the Unification Order 1984. In his submission since licence of the petitioner was suspended on 16.9.2003 vide Annexure-2 and it was cancelled on 10.12.2003 8 (Annexure-5), therefore, the provisions contained in notification dated 20.2.2007 would not be applicable. I have perused the materials available on record and considered the submissions of the learned counsels appearing on behalf of the parties. In the whole writ petition there is no averment that after coming into force of Public Distribution System (Control) Order 2001, the previous licence of the petitioner for running his Fair Price Shop under Public Distribution System was terminated and he was issued a fresh licence under the new provisions for running his shop. It was fairly conceded that in fact the petitioner was still having the licence under the provisions of Unification Order 1984, It is true that after the issuance of Public Distribution System (control) order 2001, the State Governments were authorized to issue notification laying down the procedure for issuance of licences to the Fair Price Shop Owners and far providing penal provision for violation of terms and conditions of such licence. Apparently so far State of Bihar is concerned, such notification was issued on 20.2.2007. Clause 1 of the said notification also provides the procedure for issuance of new licences. It also contemplates that the previous licence shall be terminated and new licence will be issued to the licensee. Apparently, the provision contained in 9 notification dated 20.2.2007 shall operate prospectively and would not apply in the case of the petitioner, as his licence stood cancelled much earlier in the year 2003 itself. Had the petitioner been issued a new licence for running his Fair Price shop under the provisions of P.D.S. (Control) order, 2001 or by virtue of provisions of the notification dated 20.2.2007, then certainly, the exercise of powers of authority under the provisions of Unification order, 1984 could have been termed as bad in law and could have been declared nullity in the eye of law. But that is not the case here. Admittedly, the petitioner was having licence under the provisions of the Unification Order, 1984 and he was doing his business on the strength of that licence. Therefore, the provisions contained in the Unification Order ,1984 would be applicable in the present case. Learned counsel for the petitioner has placed reliance on an order dated 22.7.2010 passed in C.W.J.C. no. 3566 of 2009 and its analogous cases, and an order dated 14.7.2010 passed in C.W.J.C. No. 6966 of 2008 and its analogous cases by a Learned Single Judge of this Court and submits that in the light of the said order, it should be held that in the case of the petitioner also the authority could have passed the impugned order in exercise of their power only under the provisions of 10 P.D.S. (Control) Order, 2001 or the notification dated 20.2.2007, and that having been not done, the impugned order may be set aside. I regret, the submissions are stated to be rejected. In the case of the petitioner, when impugned orders were passed, notification dated 20.2.2007 had admittedly not seen the light of the day and even provisions of P.D.S. (Control )Order ,2001 were not adopted by the State Government. Therefore, those orders/judgments, referred to above, cannot be applied in the present case. For the reasons recorded above, this writ petition fails and is accordingly dismissed. However, it will be open to the petitioner to apply for fresh licence under the provisions of notification dated 20.2.2007 referred to above, which will be considered by the authority concerned in accordance with the provisions of law. No costs. Rahman/(AFR) (Birendra Prasad Verma, J.)