Smt. Indira Sinha vs The State of Bihar and Others

Ajay Kr. Tripathi, J.—Based on initial show cause notice on 3.5.2005 contained in Annexure-3, the final order canceling the licence of the petitioner dated 16.5.2005 contained in Annexure-5 came to be passed by the Sub-Divisional Officer. The allegation made against the petitioner was that she deposited the security amount against the P.D.S. dealer''s licence, on a later date than the agreement and the licence was signed by the then Sub-Divisional Officer. He sought a show cause as also an explanation from the petitioner as to the cirumstances under which the said P.D.S. licence came to be issued to the petitioner after cancellation of the licence of her husband. The details of show cause thereafter came to be filed by the petitioner but the Sub-Divisional Officer in his wisdom decided to cancel the licence. Learned counsel for the petitioner submits that this action of the Sub-Divisional Magistrate was not only motivated exercise but also a reflection of non-application of mind by him to the requirements of law in this regard. He submits that there was no occasion for the petitioner to deposit any security amount because the law does not mandate so, as it is evident from an amendment which was brought by the State of Bihar from 17th October, 1985, in the Essential Commodities Act, 1955, and amendments also in the Bihar Trade Articles (Licenses Unification ) Order, 1984, which is evident from perusal of Annexure-7.

It is apparent that the Sub-Divisional Magistrate has not appreciated this fact and law before passing the order in question that the authority and exercise of power which has civil consequences must be exercised in such a manner so that it is in conformity with the requirements of law and rules, if it is not so then same cannot be sustained.

Learned counsel appearing for the State submits that the petitioner has an alternative remedy of appeal and therefore, the present writ application could not be entertained. This Court is of the opinion, that since the exercise of power in this regard is neither bona fide exercise nor in accordance with the law which goes to the root of the matter an alternative remedy even if statutory in nature does not come into play. It seems better sense has come to prevail, may be at the intervention of the High Court and vide order dated 24.11.2005, the licence of the petitioner has been restored. Let it be recorded that this restoration of licence will not be treated as an interim restoration and the licence of the petitioner shall continue to run. It is also recorded that the validity of the license shall be in accordance with the grant of the same. In so far as the impugned order contained in Annexure-5 is concerned, the same stands quashed and the writ application stands allowed.