SWAMI DISTRIBUTORS Vs. STATE

JUDGEMENT

(1.) The petitioner is a licensee under the Bihar Trade Articles (Licenses Unification) Order,. 1984. Pursuant to the said licence, it carries on wholesale business in kerosene oil. The petitioner has moved this Court in this writ petition for quashing the order dated 24-11-1988 of the Collector, Sitamarhi (respondent No. 2) as contained in Annexure-4, by which the petitioner's licence has been suspended with immediate effect because of institution of a criminal case against it under S.7 of the Essential Commodities Act. The order of suspension of the licence was not preceded by any show cause notice and/or affording any opportunity therefor to the petitioner. The writ petition was filed on 20-2-1989 and it came up for admission on 9-3-1989 before Hon'ble Mr. Justice P.S. Mishra and Hon'ble Mr. Justice R.N. Sinha, who while admitting the writ petition, formulated two questions and required the aforesaid two questions to be decided by a Division Bench. The order dated 9-3-1989 reads as follows:

(2.) Prior to the promulgation of the Bihar Trade Articles (Licences Unification) Order, 1984, (hereinafter referred to as the "Unification Order 1984,") trade and business in kerosene oil was regulated by the Bihar Kerosene Dealers Licensing Order, 1965, an order made under S.3 of the Essential Commodities Act. By Cl. 32 of the Unification Order, 1984, some of the Control orders, as shown in Schedule III of the order stood repealed, Bihar Kerosene Dealers Licensing Order 1965, being one of them. Cl. 8 of the Bihar Kerosene Dealers Licensing Order, 1965, envisages" Cancellation of licence". In the year 1975, the said C1.8 was slightly amended by providing that if any case under S.7 of the Essential Commodities Act is pending against a licensee, the licence of the licensee concerned shall remain suspended during the pendency of the case by order in writing of the licensing authority. By passing reference, it may be stated here that this power of suspension during the pendency of a criminal case was not contemplated by any other order made under S.3 of the Essential Commodities Act applicable to the State of Bihar which were in vague prior to the Unification Order, 1984, but some of the orders provided that the licence shall stand cancelled in the case of conviction but the same will be restored or reissued if the conviction is subsequently set aside. The amendment in Bihar Kerosene Dealers Licensing Order, 1965, was necessitated and followed when this Court struck down an order of suspension made because of pendency of a criminal case in the case of Onkarmal Satyanarain v. State of Bihar, reported in 1977 Pat LJR 93 : (1977 Cri LJ 39) arising out of Kerosene Dealers Licensing Order, 1965. In that case, a Bench of this Court held that pendency of a criminal case under S.7 of the Essential Commodities Act is neither contravention of any provision of the Order, nor any condition of the licence nor any directing issued under this Order.

(3.) Admittedly, the impugned order of suspension has been made in purported exercise of the power conferred under Cl. 11 of the Unification Order, 1984, which reads as follows:- Suspension and cancellation of licence- (1) of any licence or his agent or servant or any other person acting on his behalf contravenes any of the terms and conditions of the licence, then without prejudice to any other action that may be taken against him under the Essential Commodities Act, 1955 (Central Act 10 of 1955) his licence may be cancelled or suspended with regard to one or more trade articles by an order in writing of the Licencing Authority and an entry will be made in his licence relating to such suspension of cancellation. (2) No order of cancellation shall be made under this clause unless the Licensee has been given a reasonable opportunity stating his case against the proposed cancellation but during the pendency or in contemplation of proceedings of cancellation of licence, the licence can be suspended for a period not exceeding 90 days without giving any opportunity to the licenses of stating his case. Such suspension shall be limited only to those trade articles regarding which contravention has been made by the licensee.