IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1240 of 2006 SHAILENDRA SINGH Versus THE STATE OF BIHAR & ORS ----------- 02 23.09.2008 The writ petition is directed against the order dated 28.11.2005, as communicated by the Licensing Authority-cum-Sub- Divisional Officer, Barh to the petitioner. Whereby, the petitioner’s licence under the Bihar Trade Articles (Licence Unification) order, 1984 being Licence No. 3/92 has been cancelled, on the ground that a case under Essential Commodities Act has been instituted against the petitioner. Parties have appeared and counter affidavit has been filed. In my view, the order cannot be sustained. It is an order passed with reference to Clause 11(2) of the Bihar Trade Articles (Licence Unification) order. It is an order quasi judicial in nature. It has to precede by a notice in this regard. It has admittedly not been issued. Secondly, this Court has repeatedly held that merely on the ground of pendency of a criminal case the licence cannot be cancelled. Therefore, both on ground of procedural infirmity and acting in violation of not only Clause 11 (2) of the Bihar Trade Articles (Licence Unification) order but also in violation of principles of natural justice the order is rendered non est and void ab initio. The order is bad, equally on the ground that mere pendency of criminal case is no ground for canceling the licence, as has been repeatedly held by Division Bench of this Court 2 in the case of M/s Swami Distributors Vs. The state of Bihar and others since reported in 1990 (1) PLJR 210, wherein, their Lordships has clearly held that under Clause 11 (2) of the Bihar Trade Articles (Licence Unification) order, a licence cannot even be suspended, on the ground of mere pendency of criminal case. If that be the position, the licence cannot be cancelled. The learned counsel for the State submits that the writ petition should not be entertained for the reason that the petitioner has an alternative remedy of appeal. The argument is only noted to be rejected, in view of the judgment of the Apex Court in the case of M/s Baburam Prakash Chandra Maheshwari Vs. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar since reported in AIR 1969 Supreme Court 556, wherein on issue being framed the Apex Court held that :- “…….There are at least two well-recognised exceptions to the doctrine with regard to the exhaustion of statutory remedies. In the first place, it is well settled that where proceedings are taken before a Tribunal under a provision of law, which is ultra vires it is open to a party aggrieved thereby to move the High Court under Article 226 for issuing appropriate writ for quashing them on the ground that they are incompetent, without his being obliged wait 3 until those proceedings run their full course. In the second place, the doctrine has no application in a case where the impugned order has been made in violation of the principles of natural justice……..” This is case in the present. The writ petition is thus allowed and Annexure-1 is thus set aside. Trivedi/ ( Navaniti Prasad Singh, J.)