IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.284 of 2009 ----------- Amrendra Siungh, son of late Sheobalak Singh, resident of village Marwa, P.O. Ranapatti, P.S. Baikunthpur, District Gopalganj ……… Petitioner versus 1. The State of Bihar through the Secretary, Food and Civil Supplies, Government of Bihar, Patna. District Magistrate-cum-Collector, Gopalganj 2. Sub-Divisional Officer, Gopalganj. …….. Respondents ----- For the Petitioner : Mr. Y. V. Giri, Sr. Advocate with Mr. Raju Giri, Advocate. For the respondents : Mr. Raj Kamal, A.C. to S.C.20 ------ 05/ 06.07.2010 Heard learned counsel for the petitioner and learned counsel for the respondents. 2. This writ petition has been filed by the petitioner challenging order dated 10.09.2008 (Annexure 5), by which the Sub- Divisional Officer, Gopalganj decided Supply Case No. 185 of 2008 and cancelled the petitioner’s licence of fair price shop bearing no.56/2007 dated 03.05.2007 (Annexure 1) and also for a direction to respondents-authorities to restore the licence of the fair price shop of the petitioner at village Gram Panchayat Raj Marwa Bangra within Baikunthpur Panchayat in the district of Gopalganj. 3. It is not in dispute that the petitioner was granted retail trade licence by the authorities bearing licence no. 12 of 1988 under the provision of Bihar Trade Articles ( Licenses Unification ) Order, 1984 and since then he had been running his business according to the licence. It is also stated that after coming into force of the Government of Bihar, Food Supply & Commerce Department, 2 Public Distribution System (Control) Order 2001, notified vide G.S.R. No. 1 dated 20.02.2007 (hereinafter referred to as `the Bihar Control Order of 2001’ for the sake of brevity) , a fresh licence was granted to him bearing licence no. 56 of 2007 dated 03.05.2007 ( Annexure 1). 4. It is also not in dispute that the brother of the petitioner, namely, Bindeshwar Singh was also earlier granted licence of fair price shop vide licence no. 2/1986. It transpires from the record of the case that earlier a proceeding was initiated against the petitioner on the ground that two persons of the same family cannot be allowed to run their separate fair price shop but when both the brothers appeared and filed their affidavits and papers the matter was closed. 5. It further transpires that subsequently Supply Case no. 185/2008 was initiated by the authorities concerned on the same ground in which the petitioner appeared and claimed that after the death of his father there was an amicable partition between the brothers in the year 1985, according to which a Sada deed of partition was prepared by the parties on 17.04.1985, whereafter all the persons got their names mutated and separate rent receipts and choukidari rent receipts were issued to them with respect to their respective partitioned properties. Affidavit was also filed by the petitioner in respect thereof and the said claim was also supported by the enquiry report of the Sarpanch dated 20.04.1995, which was submitted by him after holding enquiry at the instance of the Sub-Divisional Officer in the first proceeding. 3 6. Learned counsel for the respondents vehemently opposes the contention of learned counsel for the petitioner and submits that two members of the same family cannot be legally granted separate licence of fair price shop and hence licence of one of them was cancelled in accordance with law. He also states that an appeal is provided under clause 15 of the Bihar Control Order of 2001 and under the said provision the petitioner had already filed an appeal, which is pending before the District Magistrate, Gopalganj due to the delay caused by the petitioner, hence no order can be passed in the instant writ case. 7. So far question raised by learned counsel for the respondents is concerned, it is quite apparent from the materials on record including the deed of partition, rent receipts, choukidari receipts, affidavits and report of the Sarpanch that there had been a partition between the brothers as far back as on 17.04.1985, whereafter the lands were also partitioned and one brother had no concern with the land of others. In the said circumstances, the joint family did not continue, rather the family of the petitioner and the family of his brothers became distinct and separate. 8. Furthermore, the provision of cancellation/suspension of the licence is made under Clause 7 of the Bihar Control Orders, 2007, but the said clause does not show that the licence can be cancelled on such a ground. In the said circumstances, the impugned order dated 10.09.2008 passed in Supply Case No. 185 of 2008 by the Sub-Divisional Officer 4 (Annexure 5) appears to be absolutely against the principle of the law. 9. So far question of appeal is concerned, it is not in dispute that against the aforesaid impugned order, the petitioner has preferred an appeal before the District Magistrate, Gopalganj on 04.10.2008 but clause 15 of the Bihar Control Order of 2001 specifically provides that the appellate authority shall dispose of the appeal within 60 days from the date of its filing. It transpires that several sixty days have passed after filing of the said appeal, hence the petitioner was justified in filing the instant writ petition. It may be noted that even if one party or the other party was dilly dallying the matter, it was the duty of the appellate authority to take appropriate steps so that the appeal is decided within the period prescribed in law. In any view of the matter, from the provisions of Clause 7 the Bihar Control Orders, 2001, it is quite apparent that the authority concerned had no jurisdiction to cancel the licence of the petitioner on the grounds mentioned in the impugned order. 11. In the said circumstances, this writ petition is allowed and the impugned order dated 10.09.2008 passed by the Sub- Divisional Officer, Gopalganj in Supply Case No. 185 of 2008 is hereby set aside. It goes without saying that quashing of the impugned order would render restoration of the licence of the petitioner for the fair price shop. MPS/ ( S. N. Hussain, J. )