IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14078 of 2009 1. RAMESH KUMAR S/O SRI SAHDEO KUWAR VILL.+P.O.- HARPUR ALOTH, P.S.- MUSRI GHARARI BLOCK AND DISTT.- SAMASTIPUR VERSUS 1. THE STATE OF BIHAR 2. THE SECRETARY CUM COMMISSIONER FOOD SUPPLY AND COMMERCE DEPTT., NEW SECRETARIAT, PATNA 3. THE DISTRICT MAGISTRATE SAMASTIPUR 4. THE CIVIL SUB-DIVISIONAL OFICER SAMASTIPUR 5. THE DISTRICT MANAGER STATE FOOD CORPORATION, SAMASTIPUR 6. THE DISTRICT SUPPLY OFFICER SAMASTIPUR ----------- 02 07.11.2009 The petitioner was a dealer under the Public Distribution System (PDS) in Gram Panchayat Raj Harpur Aloth in the District of Samastipur. His elder brother became a ward member in the Panchayat. His licence and agreement under the PDS was suspended. He immediately represented that he had separated from his brother more than 10 years back. Enquiries were made and based on the enquiry that the two were living separately in their own individual houses and had been separated for more than 10 years back. The licence and the agreement was restored by order dated 13.06.2002 of the Sub Divisional Officer, Samastitpur. Soon thereafter, it appears that State Government issued a circular to its Officers providing that to maintain impartiality if any person is elected as ward member in any Panchayat then the dealership of all his close relations, if they carry on their business in the Panchayat, should be suspended. This is being done by an executive instruction. Pursuant to the said circular on 24.03.2003 once again petitioner PDS agreement and licence was suspended, notwithstanding the previous enquiry report which had been - 2 - accepted that petitioner and his brother had separated more than 10 years back and had been living separately. Petitioner has filed this application for a direction to the respondents to restore his agreement and licence on the ground that now his brother has ceased to be a ward member and as such the agreement and the licence should be restored. Only to add insult to injury authorities are sleeping over the matter. Heard the parties and with their consent the writ petition is being disposed of at the stage of admission itself. We supposed to be living under Constitution adopted by us. The Constitution contains an Article which is Article 19(1)(g) and forms Part-III of the Constitution giving fundamental right of every citizen to carry on business and/or profession. This right to carry on business or profession can be regulated/restricted by law as is permitted by the Constitution. Law in that regard would mean law made by the legislature and not executive fiat. In nut shell, a fundamental right cannot be restricted or abrogated or suspended by an executive fiat. Here, in the present case, it is clear that merely petitioner’s brother chooses to become ward member over which petitioner has no control. Petitioner is made to lose his business. There cannot be anything more arbitrary than this apart from being patently, illegal and ultra vires the Constitution. More so, in fact where the authorities had clearly found that the petitioner and his brother were living separately and had separated more than 10 years back such sweeping restriction on the basic - 3 - fundamental right to earn livelihood cannot be held to be valid. It may be a different matter when it comes to initial grant of licence that may or may not be permitted. Considering the position that the applicant’s close relatives is in a position to influence decision or the business but not when business is already being carried out and then the relative chooses to get elected because of choice of one disability on the other independent person cannot be attached that is quite fanciful and grossly arbitrary. Be that as it may, once petitioner’s brother has ceased to be a ward member, even if the executive fiat was to be valid, his licence and agreement has to be restored and there is no escape from such view. I, therefore, direct the Sub Divisional Officer, Samastipur to consider the matter and pass appropriate orders to the facts and circumstances and the observations as made above within a period of one month from the date of production of a copy of this order before him by the petitioner. With the aforesaid observations and directions, the writ petition stands disposed of. Trivedi/ (Navaniti Prasad Singh, J.)