Badri Rishideo vs The State of Bihar and Others

Samarendra Pratap Singh, J.—Heard learned counsel for the petitioner and the State. The petitioner is a P.D.S. dealer within Purnea Sub-Divisional bearing license no. 5 of 1997. A case was instituted against him u/s 7 of the E.C. Act. The Sub-Divisional Officer-cum-Licensing Authority, Sadar Purnea vide letter dated 17.09.2002 issued notice to the petitioner as to why his license be not suspended because of institution of a case u/s 7 of the E.C. Act. Eventually the license was cancelled in the year, 2004 but soon thereafter it was restored in the same year. The aforesaid fact would appear from the impugned order contained in Memo no. 505 dated 3.7.2008 (Annexure-1).

Again on 7.6.2008, the licensing officer suspended the license of the petitioner on account of pendency of the same criminal case now in view of Clause 7(iii) of Bihar Control Order notified in the year 2007. The petitioner preferred an appeal against the order of suspension before the appellate authority, which was remanded to the Sub-Divisional Officer for fresh consideration.

The remand order was passed in view of the submissions of the petitioner that no case under the provisions of E.C. Act has been instituted against him, which is not the factual aspect. The petitioner has tried to explain that he intended to convey to the appellate court that no case was instituted after coming into force Bihar Control Order vide 2007 notification.

Counsel for the State submits that 2007 notification allowed suspension of license of a P.D.S. dealer pending of criminal case.

I would agree with the submissions of the learned counsel for the State that 2007 notification particularly Clause 7 (iii) permitted suspension of license on ground of institution of a criminal case.

The core issue is whether Clause 7(iii) of 2007 notification would apply to cases instituted prior to coming into force of Bihar Control Orders notified by the Government of Bihar on 20.2.2007. In order to ascertain whether the said provision would be applicable to case instituted prior to 20.2.2007, it would be necessary to quote Clause 7(iii) of the Act, both the Hindi version as well as English version for consideration, which reads as follows:

It would appear from bare perusal of Clause 7 (iii) that it talks about the case instituted under E.C. Act, 1955 after coming into force the 2007 notification. Clause 7 (iii) starts with word "if an F.I.R. is lodged against the P.D.S. dealers for contravention of an order issued under the E.C. Act, the license shall be suspended till the pendency of the case before the court of law."

The term if F.I.R. is lodged referred to in Clause 7 (iii) of the Act is referring to institution of case after coming into force of 2007 notification.

In such circumstances, a license cannot be suspended for cases under E.C. Act instituted prior to 20.2.2007 under Clause 7 (iii), as the Bihar Control Order itself came into force on 20.02.2007. The F.I.R. has admittedly been instituted prior to the said notification.

It is relevant to state that prior to engraftment of Clause 7(3) of the Order, the authority was not entitled to suspend license of a P.D.S. dealer during the pendency of a criminal case. The licensing authority is within its right to suspend the license if there is a contravention of conditions for grant of license or there is violation of any orders issued under the E.C. Act, 1955. Reference can be made to the decision dated 13.7.1978 passed in C.W.J.C. No. 1914, 2063 & 2064 of 1974 (M/s Bajranglal Sushil Kumar vs. The State of Bihar & Ors) heard with other analogous cases.

It is relevant to note that the said Clause has been deleted vide 2011 amendment with effect from 26.3.2011. However, the said amendment is prospective and not retrospective. Thus a license could have been suspended provided an F.I.R. was between 20.2.2007 to 26.3.2011.

The impugned order dated 3.7.2008 suspending the license of the petitioner on the ground of pendency of a criminal case u/s 7 of the E.C. Act instituted in the year 2002 (prior to 20.2.2007) would not be sustainable in law. It will be open for the authorities to proceed against the petitioner if there is violation of conditions of the license or breach of provisions of E.C. Act. The criminal case would proceed in accordance with law. The court in seisin of Sadar B case no. 260 of 2002 dated 30.08.2002 u/s 7 of the E.C. Act would expedite the hearing, if not already disposed of. With the aforesaid observation, the part of the impugned order, so far as it relates to suspension of the license is quashed.