IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18516 of 2009 1. MANISH KUMAR S/O LATE OM PRAKASH R/O MAIN ROAD, NAWADA, P.S. NAWADA, DISTT. NAWADA 2. RAVI KUMAR S/O LATE OM PRAKASH R/O MAIN ROAD, NAWADA, P.S. NAWADA, DISTT. NAWADA Versus 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE NAWADA 3. THE SUB-DIVISIONAL OFFICER NAWADA 4. THE EXECUTIVE OFFICER MUNICIPAL COUNCIL, NAWADA ----------- For the Petitioner:- Mr. Raghwanand, Adv. For the State:- Mr. Shambhu Nath AC to AAG-3 --------------- 2. 28.02.2011 Heard learned counsel for the petitioner and the State. The father of the petitioner applied for licence to the Nawada Municipality under Bihar Municipal Act for establishment of a godown and sale counter at his residential premises for dealing in fish. He came to this Court earlier in C.W.J.C. No. 2265 of 2003, inter alia contending that others are being permitted to carry on business in flesh/fish/poultry from their private premises while the petitioner is sought to be discriminated by asking him to shift his business out of his private premises. Notices were issued to the Municipal council, Nawada but no one appeared on their behalf and neither did the State file any counter affidavit. The Court therefore disposed off the application with the observation that the petitioner may apply in accordance with the provisions of Chapter 37 of 2 the Bihar Municipal Act observing that “For regulating such markets municipality must evolve a policy which should guide their discretion in the matter. The power cannot be exercised in any arbitrary manner by asking someone to stop the business by ignoring someone’s business and by permitting someone to do business or directing someone to shift his business. All these actions have to be taken in a common policy for the entire municipal area. This would avoid people complaining of arbitrary exercise of discretion and hostile discrimination in the matter.” It is submitted that the petitioner’s father expired in the meantime and the petitioner desires to continue with the cause of action for purposes of his vocation. The impugned order dated 15.5.2009, is arbitrary and non-speaking in nature. The petitioner under the R.T.I. Act has obtained information about at least 25 persons carrying on the business of flesh/fish/poultry without proper licence. The town of Nawada is replete with such illegal sale of the aforesaid items but the petitioner is sought to be penalised because be desires to be a law abiding citizen and work under a licence. In the nature of the previous order of the Court, and the fresh impugned order coupled with the 3 information obtained by the petitioner under the Right to Information Act, no useful purpose would be served by issuance of notice to the municipality, which in any event on the previous occasion did not appreciate the seriousness of its duties to assist the Court in dispensation of justice. The Court therefore requested the counsel for the State to assist so that, if possible, the writ petition may be disposed at this stage. Counsel for the State points out that the petitioner does not have a right to demand and carry on business from his residential premises by part commercial user of the same. It is subject to regulatory control under the Bihar Municipal Act. It is next submitted that the impugned order states that in the interest of public health, the petitioner could not be permitted to carry on business of fish/flesh/poultry from his house. Learned counsel for the State finds it difficult to convince the Court from the consideration in the impugned order in what manner the carrying on business by the petitioner from his premises under a licence with specified terms and conditions could be presumptively construed as a violative of public health at this stage on assumptions and presumptions. Learned counsel for the State then suggests that the matter be 4 remanded to the Municipal authority. The order dated 15.5.2009 is set aside. The matter is remanded to the Executive Officer, Nagar Parishad, Nawada to grant personal hearing to the petitioner in light of the discussions contained in the present order and pass a fresh reasoned and speaking order within a maximum period of eight weeks from the date of receipt/production of a copy of this order. Needless to state that one wrong may not vest a right in the petitioner to demand perpetuation of illegality. But, simultaneously, if the attention of the Executive Officer is drawn to a wrong existing in the town, he has to take necessary action against all offenders in accordance with the Bihar Municipal Act least he saddled the charge of abdication and preferential enforcement of statutory duty for other considerations. The writ application stands allowed. P. Kumar ( Navin Sinha, J.)