Allowed

Radha Krishna v. The State Of Bihar and Ors.

Patna HC11 Mar 2014CWJC/9191/2013

Case brief

AI extract

What is this about?

The Patna High Court quashed an order rejecting a petitioner's application for a fair price shop licence. The court directed the Licensing Authority to issue the licence within three weeks, noting the relevant government clause was stayed.

What did the court decide?

Quashed the impugned order dated 08.10.2012; directed the Licensing Authority to issue licence to the petitioner within three weeks.

Radha Krishna Vs The State Of Bihar and Ors. — Pension and Retirement Benefits | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No.9191 of 2013

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	====================================================== Radha Krishna Son Of Shri Ramakant Sharma Resident Of Village - Keshapa, Police Station - Alipur, District - Gaya .... .... Petitioner/s Versus 1. The State Of Bihar 2. The Secretary, Department Of Food and Civil Supply, Govt. Of Bihar, Patna 3. The District Magistrate-Cum Chairman District Selection Committee, Gaya 4. The District Supply Officer cum Secretary, District Selection Committee, Gaya 5. The Sub-Divisional Officer cum Licensing Officer, Tekari, District - Gaya 6. The Block Supply Officer, Tekari, District - Gaya .... .... Respondent/s ======================================================
	Appearance : For the Petitioner/s : Mr. Amar Nath Singh Mr. Binaya Kumark For the Respondent/s : Mr. Ranjan Kumar, A.C. to AAG 4
	====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER
3 11	-03-2014 Heard Mr. Amar Nath Singh for the petitioner and A.C. to
	AAG 4 for the State.
	A counter affidavit has been filed on behalf of the
	respondents.
	The petitioner is aggrieved by the order dated 02.04.2013 (Annexure-1) passed by the District Magistrate, Gaya as Chairman of the District Selection Committee for grant of licence to run the fair price shop under the Bihar Public Distribution System
	(Control) Order, 2001( for short „the Order‟) which is effective

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since 20.02.2007.

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The background facts, in brief, may be set out at the onset. The petitioner belongs to unreserved category. Being educated but unemployed he filed an application on 22.09.2009 before the Sub Divisional Officer-cum-Licensing Authority, Tekari, Gaya in prescribed form for grant of a licence to run the fair price shop. The Licensing Authority in the light of the requirement of such fair price shops and the roster point thereof available for unreserved category candidate accepted the said application upon verification made by the Block Supply Officer who had recommended for grant of the licence. The matter was referred to the District Level Selection Committee which is the competent body to consider and grant licence. A meeting of the Selection Committee was held on 01.12.2009. The said matter, however, remained pending which propelled the petitioner to file a writ petition in this Court vide CWJC No. 19596 of 2011. A bench of this Court vide order dated 30.03.2012 (Annexure-2) disposed of the writ application directing the Sub Divisional Officer (Licensing Authority) to consider the application of the petitioner and take appropriate decision expeditiously preferably within a period of four months from the receipt of a copy of the said order. The respondent did not take appropriate steps in the light of the

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said order which again propelled him to file a contempt application in this Court vide MJC No. 4345 of 2012. While the said matter was pending consideration, the Respondent District Magistrate, Gaya directed the Licensing Authority to reject the application of the petitioner on account of his ineligibility as per the Clause 2.4 of the Order read with notification no. 5738 dated 23.06.2011 whereby the licences were required to be granted not to the individual but to a group of people like the Co-operative Society, PACS. etc. In the light of the said direction of the District Magistrate the application for grant of licence filed by the petitioner was rejected on 08.10.2012 by the Licensing Authority. It is to be noted here that in the light of the order passed by this Court in CWJC No. 16192 of 2011 the State Government vide an order contained in letter bearing no. 5810 dated 11.09.2012 (Annexure-5) had issued directions to all the District Magistrates for compliance of the order passed by this Court. The petitioner aggrieved by the aforesaid order dated 08.10.2012 passed by the Licensing Authority again moved this Court in CWJC No. 22342 of 2012. The same was heard by this Court and by a proceeding dated 10.12.2013 (Annexure-6) disposed of the same in the following terms:-

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“4. The impugned order dated 8.10.2012 has been passed relying on the instruction of

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the Government dated 23.6.2011, which has already been stayed by the High court, as such, on the ground that the impugned order has been passed placing reliance on the instruction of the Government, which has already been stayed by the High Court, the order dated 8.10.2012, Annexure-1 is quashed, however, with direction to the licensing authority to take decision in the light of the instruction of the Government which was superseded under departmental letter no.5738 dated 23.6.2011 but such decision shall be subject to the result of C.W.J.C. No.16192 of 2011. Appropriate decision in compliance of this order be taken by the licensing authority within reasonable time not exceeding two months from the date of receipt/production of a copy of this order before him.”

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The Licensing Authority in the light of the aforesaid order dated 10.12.2013 passed in CWJC No. 22342 of 2012 submitted a recommendation/proposal for grant of licence in favour of the petitioner vide communication dated 23.02.2013 (Annexure-7) from perusal whereof it appears that for the area in question a specified number of licences were to be issued to run the fair price shop. Three was vacancy existing for grant of licence to the applicant belonging to unreserved category. One such licence therefore could be issued in favour of the petitioner who belonged to unreserved category. The petitioner otherwise fulfills all the requirement. The guidelines subsequently issued by the Government putting a rider on grant of such licence has since

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been declared ultra vires by this Court. Accordingly, the matter was directed to be placed before the District Level Selection Committee or the District Magistrate for consideration in the light of the order passed by this Court in CWJC No. 22342 of 2012. The District Magistrate by the impugned order rejected the application of the petitioner primarily on the ground that the petitioner did not fulfil the requisite eligibility as licences is/are to be issued on priority basis to the group of people. It has also been found therein that in accepting the application of the petitioner the Licensing Authority had not acted in a transparent manner.

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Learned counsel for the petitioner while assailing the said order submits that the primal ground on which licence to the petitioner has been refused is based on the circular appended to the counter affidavit (Annexure-C) which has already been quashed and set aside by a Division Bench of this Court in CWJC No. 15157 of 2011(Bihar Pradesh Jan Bitran Pranali Dukandar Sangh vs. State of Bihar & Ors.) and its analogous writ petitions. He also relies in this regard on a communication issued by the Respondent Collector as contained in letter bearing memo no. 156 dated 08.02.2014 whereby it was notified to all concerned that the relevant clause i.e. clause 3 of the notification of the Government dated 23.06.2011 has already been quashed and set

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aside by this Court. It is next submitted that in the order impugned it is nowhere disputed that there was no vacancy for issuance of licence which was as per the roster to be given to the candidate/applicant of unreserved category. The finding of the Collector that the application was received in a non transparent manner is also not sustainable in law in view of the fact(s) disclosed in the letter dated 23.02.2013 of the Licensing Authority (Annexure-7)wherein all relevant facts was/were disclosed. It has thus been submitted that the said order is bad in law and be quashed.

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True it is that the notification of the Government in so far as the relevant clause is concerned has been quashed and set aside by the Division Bench of this Court but the case of the petitioner still requires to be considered in the light of other/remaining requirements of law. It has, therefore, been submitted that the matter be remitted to the District Magistrate after clarifying the position in law for consideration and disposal in accordance with law.

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While appreciating the case of the petitioner this Court in CWJC No. 22342 of 2012 (relevant part/portion thereof has already been quoted herein above) had directed the Licensing Authority to take a decision in the light of the instructions of the

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government which was superseded under the departmental letter dated 23.06.2011 which was made subject to the result of the writ petition in which the sustainability thereof was under challenge. There is no controversy that the said writ application has been allowed inasmuch as the relevant clause of the departmental letter dated 23.06.2011 has been quashed and set aside. The said clause is, therefore, no more a hurdle in grant of licence to the petitioner if he is otherwise eligible for the same. At this Stage this Court may note that so far as the vacancy is concerned there is also no dispute since from Annexure-7 it is more than apparent that one licence earmarked for unreserved category has not till date been issued/granted. From perusal of the impugned order (Annexure1) it is evident that the case of the petitioner was rejected on the ground that according to the priority/preference so made by the Government in the said letter dated 23.06.2011 the petitioner being an individual was not eligible for grant of licence. Now the said provision has already been quashed and set aside by this Court and as such the said reason no longer exists

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In the light of the facts noticed hereinabove, this Court is satisfied that the order passed by the Respondent District Magistrate (Annexure-1) be quashed and set aside and the Licensing Authority be directed to issue licence to run/operate

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fair price shop in favour of the petitioner if he is otherwise eligible/qualified for the same within three weeks from the date of receipt/production of a copy of this order.

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I order accordingly.

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No cost(s)

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(Kishore Kumar Mandal, J)

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HR/-

Radha Krishna v. The State Of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

Radha Krishna v. The State Of Bihar and Ors.

Case brief

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