IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14349 of 2006 1. MITHLESH KUMAR SINGH SON OF SRI CHAMK LAL SINGH, RESIDENT OF VILLAGE LUXMIPUR BATHAUNA, P.O. LOHRA (LUXMIPUR) P.S. HAVELI KHARAGPUR, DISTRICT MUNGER 2. DHANAJAY KUMAR SINGH SON OF SRI RAM PRATAP SINGH, RESIDENT OF VILLAGE- BAHIRA, P.O. LOHCHI, P.S. HAVELI KHARAGPUR, DISTRICT MUNGER ………..PETITIONERS Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY FOOD, SUPPLY AND COMMERCE DEPARTMENT, GOVT.OF BIHAR, PATNA 2. THE SECRETARY, FOOD, SUPPLY AND COMMERCE DEPARTMENT, GOVT. OF BIHAR, PATNA 3. THE COLLECTOR, MUNGER 4. SUB-DIVISIONAL OFFICER CUM LICENSING AUTHORITY, KHARAGPUR, MUNGER 5. DISTRICT SUPPLY OFFICER, MUNGER 6. THE SPECIAL OFFICER-IN-CHARGE, RATIONING, MUNGER ……………… RESPONDENTS 4 28.10.2009 The petitioners pray for quashing the memo no.1452 dated 13.9.2006 issued by the Subdivisional Officer, Kharagpur, Munger whereby the name of the petitioner has been deleted from the entries made in the license of the original licensee of Public Distribution System as co-partners. It appears that one Kiro Singh was an original licensee bearing licence no.29 Kha/1985 under the Laxmipur , Badhauna, Kharagpur Panchayat. As he was an old and sick person he filed an application for addition of name of petitioner no.1 who happened to be his grant son as partner for running of P.D.S. shop. Similarly, one Hira Das was also granted a licence bearing licence no.1/2003 and he filed an application for addition of the name of petitioner no.2 as partner for smooth running of the P.D.S. shop. The licensing authority in exercise of his power conferred under clause 9 of the Bihar Trade Articles (Licenses and Unification) Order, 1984 accorded permission to 2 them for being added as co-partners in light of a decision rendered by this court dated 3.11.1998 passed in C.W.J.C.NO.1002 of 1998, contained in Annexure-6, wherein this court upheld the power of the licensing authority to add person as co-partner in addition to the original licensee. Learned counsel for the petitioners submits that Kiro Singh, original licensee of licence bearing no.29 Kha/1985 died on 18.10.2006 at the age of about 105 years. He thus submits that under the circumstances the goods and articles covered under the aforesaid licence ought to have been delivered to petitioner no.1. He further submits that the name of petitioner no.1 has already been substituted in place of Kiro Singh. The petitioner is aggrieved by order dated 13.9.2006 contained in memo no.1452 issued by the S.D.O. Kharagpur, Munger, whereby the name of both the petitioners as co-partners of Kiro Singh and Hira Das respectively were ordered to be deleted from the licence. The aforesaid order dated 13.9.2006, contained in Annexure-7, was passed in view of letter no.796 dated 4.3.2006 issued by the Government of Bihar, Department of Food, Supply and Commerce and consequent direction of the District Magistrate, Munger contained in letter no.306 dated 7.7.2006. The petitioner also annexed a copy of the decision of the Government of Bihar issued under the signature of Secretary, Food, Supply and Commerce department, contained in Annexure-8. 3 Learned counsel submits that both the letter of S.D.O. Kharagpur as well as decision of the Government of Bihar communicated vide letter dated 4.3.2006, contained in Annexure-8, are without jurisdiction. Learned counsel for the State submits that in P.D.S. Control Order, 2001 as well as notification no.G.S.R.No.1 dated 20.2.2007 there is no provision for induction of partner in the licence. In support of his contention, he has referred to Clause 9 of the P.D.S. Control Order, 2001. On the other hand the petitioner states that P.D.S. Control Order, 2001 has become effective in the State of Bihar from 20.2.2007 as per notification of Government of Bihar, Food, Supply and Commerce department issued in exercise of power conferred under section 3 of the E.C. Act for grant of licence, suspension/cancellation, terms and conditions and regulating sale and distribution of the Essential Commodities. He submits that in view of clause 24 of the General Clauses Act, the earlier rules and regulations unless repealed or re-enacted would continue to be in force and be deemed to have been under new provision so enacted unless it is inconsistent with the new enactment. It appears that the Central Government in order to ensure effective availability and distribution as well as supply of Essential Commodities issued P.D.S.(Control) Order, 2001 in exercise of power conferred under section 3 of the Essential 4 Commodities Act. Clause 14 of the aforesaid Order provides that provisions of the Order would prevail over previous orders of the State Governments. Clause 5 to the annexe to the P.D.S.Control Order, 2001 provides that the State Government shall issue an order under section 3 of the Act for regulating the sale and distribution of Essential Commodities. The licenses for the fair price shop would be issued under the said Order by the designated authority appointed by the State Government and the authorities shall lay down the duties and responsibilities of fair price owner. The various duties and responsibilities of the fair price owner has been enumerated in sub-clause(1) to 8 of Clause 5 to the annex. The Government of Bihar, Food, supply and Commerce department in exercise of power under section 3 of the E.C. Act as well as under the P.D.S. Control Order, 2001 issued notification as to the issuance of licence, suspension/cancellation, terms and conditions and regulating the sale and distribution of the Essential Commodities. Clause 9 of the P.D.S. Control Order, 2001 prohibits the addition of partners in the licence. It would be useful to quote Clause 9 of the P.D.S. Control Order, 2001 which reads as under: “9. Transfer of Licence- The licence shall not be transferred to any other member of the family/any other person. There cannot be any partner in the licence.” The P.D.S. Control Order, 2001 issued by the 5 Government of Bihar also prescribes the procedure for issuance of licences. It would be useful to quote the relevant provisions under the procedure for issue of licenses which reads as under: “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 inform 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”. The P.D.S. Control Order, 2001 confers power on the licensing authority to terminate the on going agreement and provides new licence in form II to existing licensee after deposit of licence fee within six months. The new 2001 PDS Order has become workable in the State of Bihar only on 20.2.2007. The impugned order dated 13.9.2006 of licensing authority is prior to 20.2.2007. Clause 24 of the General Clauses Act saves enforceability of an order issued under an enactment which has not been repealed or re- enacted. In this view of the matter, the impugned order dated 13.9.2006 passed by the S.D.O., Kharagpur, contained in 6 KHAN Annexure-7 deleting the name of the petitioners as co-partners of the original licensees is set aside. However, it would be open to the respondent authorities to take appropriate action under provisions P.D.S Control Order 2001 which has now become workable in the State Government on 20.2.2007. With the aforesaid observations and directions, this writ petition is allowed to the extent indicated above. (S.P.Singh,J)