IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13770 of 2006 1. Ravindra Dubey son of late Bhukhan Dubey, resident of village Deulia, P.S. Sikkarpur, District West Champaran, 2. Md. Arif son of late Sheikh Wakil, resident of village Pipra Deulia, P.S. Sikkarpur, District West Champaran, 3. Pradip Kumar son of late Ganesh Prasad, resident of village Narkatiyaganj, P.S. Sikkarpur, District West Champaran, 4. Paspat Prasad sonof late Chchathu Sao, resident of village Narkatiyaganj, P.S. Sikkarpur, District West Champaran, 5. Dhanraj Mahara son of late Ganesh Mahara, resident of village Pipra Deulia, P.S. Sikkarpur, District West Champaran, 6. Rajesh Prasad son of Ramesh Prasad, resident of village Narkatiaganj, P.S. Sikkarpur, District West Champaran, 7. Md. Ashgar Ali son of Md. Israil Mian, resident of village Chanpatia, P.S. Chanpatia, District West Champaran, 8. Md. Ashin son of late Md. Sitab Mian, resident of village and P.S. Chanpatia, District West Champaran, 9. Md. Habib sonof late Rahman Mian, resident of village and P.S. Chanpatia, District West Champaran, 10. Most Sajaha Khatoon wife of late Hanif Mian, resident of village and P.S. Chanpatia, District West Champaran, 11. Ahmad Khan sonof late Shamad Khan, resident of village Sathi Bazar, P.S. Sathi, District West Champaran, 12. Rama Shankar Prasad son of late Dukh Bhanjan Prasad, resident of village Narkatiaganj, P.S. Sikkarpur, District West Champaran, … .. Petitioners Versus 1. The State Of Bihar through the Secretary, Department of Food, Civil Supplies and Commerce, Government of Bihar, Old Secretariat, Patna, 2. The District Magistrate-cum-Collector, West Champaran at Bettiah, 3. The District Supply Officer, West Champaran at Bettiah, District West Champaran, 2 4. The Sub-divisional Officer, Bettiah Sadar, Bettiah, District West Champaran, 5. The Sub-divisional Officer, Narkatiyaganj, District West Champaran, … … Respondents For the Petitioners: Mr. Shravan Kumar, Sr. Adv. M/s Rajiv Nayan Singh and Dinesh Maharaj, Advocates For the State: Mr. Maheshwar Dhar Dwivedi, SC 23 Mr. Sanjay Kumar Singh, AC to SC 23 ----------- 4 26.07.2011 Heard learned counsel for the petitioner and the State. Petitioner seeks direction to the respondents to resume supply of kerosene oil to them as licences have been granted to the petitioners to deal with same and, as such, the State was duty bound to consume regular supply. It is submitted on behalf of the petitioners that they have been granted licences under the provisions of the Bihar Trade Articles (Licences Unification) Order, 1984 as per the description given in paragraph 5 of the writ application and supply of kerosene oil was being made to them for the purpose of distribution from the shop as well as ration card holders. The supplies were made till April 2003, however, suddenly that was stopped without assigning any reason or asking any show-cause or even alleging anything 3 against the petitioner for violation of any of the terms and conditions of the licences etc.. Learned counsel places reliance upon one unreported decision of this Court dated 24.09.1991 rendered by a Division Bench in C.W.J.C. No. 5047 of 1991 (Dhruv Prasad and others v. The State of Bihar and others) holding that everybody has a fundamental right to carry on trade and business subject to regulation which is in the form of Unification Order. Supply of kerosene oil is monopoly of the Government and, therefore, one must have the allotment of the said commodity from the State Government as it is not available with the whole seller for the purpose of retail business. Thus, in the opinion of the Division Bench that the Government is duty bound to allot to a licensee the kerosene oil otherwise the effect would be that the licence issued under the Act would stand nullified. It is submitted that the aforesaid decision of stopping supply of kerosene oil has been taken upon at the pretext of some policy decision taken by the Government for refining and fine tuning the public distribution system, however, the aforesaid act of the State Government had been subject to scrutiny by this Court in C.W.J.C. No. 7724 4 of 2005 (Irfhan Ahmad and others v. The State of Bihar and others) and by order dated 14.02.2006 passed therein this Court had held that only on the ground that there was no written agreement to supply kerosene oil to the petitioners of that case, the decision not to effect supply has been taken. The petitioners have been granted licence for that purpose and the supply had continued for several years even in the absence of written agreement and that would amount to be a deemed agreement between the parties. The same can only be terminated provided the State has decided to do away with the public distribution system or the petitioners have been found to be involved in such an act that is contrary to the terms and condition of the licence or have indulged in malpractices. The writ petition was allowed with a direction to the respondents to resume the supply of kerosene oil forthwith. Learned counsel submits that the case of the petitioners is squarely covered by the aforesaid decision and they are also entitled to be granted the selfsame relief. It has lastly been urged on that a representation was also filed by the petitioners in view of the aforesaid decision as contained in Annexure 1 of this Court and that was received by the authorities on 18.09.2006, but no order could be passed till 5 date. A counter affidavit has been filed on behalf of the State. Learned counsel for the State draws attention of this Court towards the averment made in paragraph 6 with regard to the policy of the State Government for allotment of kerosene oil and also that vide letter dated 16.07.2002 the Department has directed all the Commissioners of the Divisions and District Magistrates of the State to streamline the supply of kerosene oil through public distribution system. However, so far the order dated 14.02.2006 passed by this Court in C.W.J.C. No. 7724 of 2006 is concerned, there is no specific averment that the case of the petitioners is different from the petitioners of that case. The only ground taken therein is that the petitioners were not parties to that writ application, thus, they would not be covered by the aforesaid order. However, this submission raised on behalf of the State is noted only to be rejected in view of the fact that on plain reading of the aforesaid order reveals that the same has discussed the merit of the said policy of the State Government. This Court has come to the conclusion that in view of the deemed agreement, unless the State has done away with the Public Distribution System or unless the 6 persons, who have been granted licence, are said to have violated the terms and conditions of the licence and have indulged in malpractices, the State is duty bound to supply the kerosene oil regularly. In the opinion of this Court the petitioners would also be covered by the decision of this Court as contained in Annexure 1. It is also not the case of the State that the aforesaid order has been challenged in appeal, rather a categorical statement has been made in paragraph 8 of the counter affidavit that so far the petitioners of that case are concerned, supplies have been restored to them in view of the order passed by this Court in the aforesaid writ application. In view of the fact that the representation as contained in Annexure 7 was filed by the petitioners way back in the year 2006 and there is no averment in the counter affidavit that the same has been disposed of and also since learned counsel for the petitioners has informed this Court that no decision has been taken as yet and in between five years have elapsed, it would not be proper for this Court to relegate this matter again to the authorities to dispose of the same. 7 Accordingly, this writ application is allowed in terms of the aforesaid order passed by this Court, a copy of which is appended as Annexure 1 and the respondents are hereby directed to resume the supply forthwith in favour of the petitioners. SC ( Dr. Ravi Ranjan, J.)