BADAL KRISHNA CHATTERJEE Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this application under Articles 226 and 227 of the Constitution, the petitioner has challenged the legality and validity of the order/direction dated 5th May, 1981, issued by the Sub-Divisional Officer (Supply) Dhanbad, respondent No. 2 (hereinafter to be referred to as 'the Licensing Authority'. The copy of the impugned order/direction has been marked Annexure '1' to the writ application. By the impugned order/direction respondent No. 2 in purported exercise of the powers conferred on him under Clause 5 of the Bihar Coal Control Order, 1956 (hereinafter to be referred to as 'the Control Order') has directed all the licensees including the petitioner of the district of Dhanbad to shift their place of business, namely, the coal depots mentioned in the respective licences beyond the radius of 8 kilometres from the coal mines and after such a shifting to such a place they have been called upon to furnish the situs of their business within one week to the Licensing Authority in order to enable him to suitably modify the place of business in the license in question. It has further been directed that if the place of business is not shifted beyond a radius of 8 Kilometres from the coal mines it will be treated as a violation of the terms and conditions of the licenses for which the petitioner along with the other licensees of the district may incur cancellation of their licenses treating the same to be in contravention of the terms of the licenses and the dealers may further be liable for other actions under the law. The aforesaid order was received by the petitioner on 9th May, 1981. The petitioner has challenged this order on a number of grounds.

(2.) Before, however, we embark upon the question of law canvassed at the Bar, it is worthwhile to set out the admitted facts as are borne out by the petition and the counter-affidavit filed on behalf of the respondents in this case. The facts are that the petitioner along with the other licensees in the district of Dhanbad were carrying on their retail coal business within a radius of 8 kilometres from the coal mines. It was felt by the State Government that such a location of the coal depots where the business of the licensees was being carried on was neither commercially expedient nor suitable to the administrative exigencies. After deliberating from time to time the State Government took a decision that all such licensees be directed to shift their situs of business to a place beyond the radius of 8 kilometres from the coal mines in question. It was very well be presumed at this stage at least that the commercial expediency which the State Government thought of was to stop the clandestine delivery of coal from the coal mines leading not only to loss of public exchequer, but holding the society to ransom in so far as the supply and distribution of coal for cooking purposes were concerned, to the loss of business of the licensees and to the discomfiture of the domestic consumers of coal. The State Government having taken such a decision, the Commissioner for Food, Supply and Commerce was directed to issue a circular who accordingly sent a circular to the Deputy Commissioner, Dhanbad, Ranchi, Hazaribagh, Giridih and Santhal Pargana. It may not be out of place to mention here that only five districts have got coal mines beneath their surface. The circular issued by the aforesaid Deputy Commissioner is Letter No. 3688 Supply and Commerce/Patna 15, dated 25th April, 1981. A copy thereof has been marked as Annexure 'B' to the counter affidavit. It has been stated therein that the State Government having decided and having felt that the situation of coal dumps of private traders of the concerned coal mines is not desirable from the commercial and administrative point of view and having thoroughly gone into the matter the Government had decided that all the private traders must be shifted for the purpose of their coal business to a place beyond the radius of 8 kilometres from the coal mines. As a result of this circular having been issued at the instance of the State Government, a letter was addressed by the Deputy Commissioner, Dhanbad, to the Sub-Divisional Officer, Dhanbad, Chas, respondent No. 2, to give effect to the decision of the State Government. It was also directed that at least fifteen days' time should be given to the licensees to shift the situs of their business to such a place which was beyond the radius of 8 kilometres from the coal mines. A copy of this letter of the Deputy Commissioner dated 30th April, 1981, has been marked as Annexure 'A' to the counter affidavit. It was only pursuant to the aforesaid decision of the State Government and the letter issued by the Deputy Commissioner (Annexures 'B' and 'A' respectively) that respondent No. 2 issued order/direction as contained in the impugned annexures to all the licensees in the district of Dhanbad including the petitioner. We are, however, not concerned in this case with other licensees who have filed a separate writ application. We confine ourselves only to the notice issued to the present petitioner alone, being an individual.

(3.) Learned counsel for the petitioner challenges the legality of the aforesaid order/ direction on the following grounds. To usa the language of Mr. S. B. Sinha, learned counsel for the petitioner himself, learned counsel submitted that the impugned order was issued in the purported exercise of the powers under Clause 5 of the Control Order as already noticed above and the impugned direction/order is illegal because the condition precedent to the exercise of the power under Clause 5 of the Control Order being the need of the people of the locality, having been absent in Annexure '1', Licensing Authority has no jurisdiction to issue such a direction/order in view of the fact that the power to choose a policy for a particular place being expressly conferred upon the Licensing Authority, such power could not be exercised by the State Government. It was contended in this regard that although the State Government was higher authority but could not impose its own policy decision upon the Licensing Authority. The State Government could not itself exercise the power under condition 8 of the License in Form A of the Control Order by way of policy decision, as condition 8 of Form A of the Control Order confers no such general blanket power on the State Government. In any view of the matter it was contended that since condition 8 of the license speaks of sale, storage or accounting, these terms could not include the place or situs of business because of its being expressly the subject matter of the aforementioned Clause 5 of the Control Order itself. As such, it was submitted that the impugned order/direction was ultra vires Clause 5 of the Control Order and in any event condition 8 of the License in Form A having conferred no such blanket power on the State Government, condition 8 itself was ultra vires Clause 5 of the Control Order. Lastly, it was submitted that such a policy decision which has already been mentioned above and the order/direction issued under the provisions of law which have given an arbitrary and unbridled power to the State Government to issue such order/direction, as has been issued from time to time, have all violated the provisions of Article 14 of the Constitution of India. It was further submitted in this connection that it is well settled that a public body incorporated under the statutory power must take care not to exceed or abuse its power. It must be kept within the limits of the authority opted to it. It must act in good faith and it must act reasonably. In this case it has been strenuously contended that neither the State Government kept itself within the limits committed to it nor acted in good faith and reasonably. In support of this contention learned counsel placed a number of decisions which are "Tahir Hussain v. District Board, Muzaffarnagar" (AIR 1954 SC 630), Messrs Dwarka Prasad v. State of Uttar Pradesh (AIR 1954 SC 224), R. M. Seshadri v. District Magistrate, Tanjore" (AIR 1954 SC 747); Bharat Coking Coal Ltd. v. The Raneegunge Coal Association Ltd." (AIR 1978 SC 1456); "Commr. of Police, Bombay v. Gordhandas Bhanji" (AIR 1952 SC 16), Hukum Chand Shyam Lal v. Union of India (AIR 1976 SC 789), "Nirendra Kumar Bose v. District Magistrate (AIR 1978 Pat 241); "Hamdard Dawakhana v. Union of India (AIR 1960 SC 554), "Nageshwar Prasad Singh v. Kashinath Singh" (1958 BLJR 820), No one can take exception to this well established principle of law. As a matter of fact the decisions are legion on this point. But to our mind, none of these principles is attracted to the facts of the present case nor any of these decisions is relevant to the point in issue. 3-A. It has not been contended that the Control Order is ultra vires the Essential Commodities Act, 1955 (hereinafter to be referred to as 'the Act'). The submission which has been the sheetanchor of the petitioner's counsel is that the order/direction impugned is ultra vires Clause 5 of the Control Order and is not covered by condition 8 of the license in Form A. We are, therefore, called upon to decide this limited question. The Control Order has been issued in purported exercise of the powers conferred by Section 5 of the Act (X of 1955), read with serial No. 1 of the schedule appended to notification of Government of India, the Ministry of Production, No. S. R. O. 1299 dated the 10th June, 1956 and S. R. O. 2423, dated the 27th Oct, 1956, and in supersession of the order of the Government of Bihar published with the Supply and Commerce Department notification No. 23597 P. dated the 9th Oct., 1947, by the Governor of Bihar. Some of the clauses of the Control Order need be taken note of here. Clause 3 of the Control Order prohibits dealing in coal except under license. Clause 4 deals with the application for grant of license and stipulates that every application for the grant of license under this Order shall be made in Form B to the Licensing Authority and shall be accompanied by a treasury chalan showing that a fee of thirty rupees has been deposited in a Government treasury to the credit of the State Government. Thereafter comes the crucial Clause 5 which speaks of the grant of license which needs to be reproduced here and which runs thus:--