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KULTALI FOOD MARKETING PVT. LTD. & ANOTHER V/S STATE OF WEST BENGAL & OTHERS, decided on Wednesday, August 14, 2013.
[ In the High Court of Calcutta, W.P. No. 132 of 2012. ] 14/08/2013
Judge(s) : ANIRUDDHA BOSE
Advocate(s) : Kalyan Bandyopadhyay, Sr. Adv., Kumar Gupta, Mrs. Nibedita Pal, Ramesh Dhara. Subrata Talukdar, Md. T.M. Siddiqui, R7, Biswanath Chakraborty, Krishnendu Bera.
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    West Bengal/Distribution System (Maintenance and Control) Order 2003 -License for distributorship – the applicant’s application was rejected holding he is not eligible for license – there was a complaint against the petitioner alleging non-fulfillment of conditions – the court opined the district controller had committed error in undertaking a full-fledged enquiry at a preliminary stage – the court further opined the director should have waited for the recommendation of the District Collector –Court Held such enquiries are quashed and District Controller is directed to consider the report of the Sub-Divisional Controller.(Paras 1 4 6 10 11 12 13)Cases Referred:1. (W.P. No. 1792 of 2005 Biswajit Adak Vs. State of West Bengal & Ors.)2. W.P. No. 144 of 2010) Goutam Kumar Saha Vs. The State of West Bengal & Ors.     Aniruddha Bose J.1. The question involved in this writ petition is as to whether a district controller who also happens to hold the rank of Joint Director Food & Supplies could conduct an enquiry over allegations of non-eligibility of an applicant for a license for distributorship under the provisions of the West Bengal/Distribution System (Maintenance and Control) Order 2003 (2003 Order) at the instance of the Director District Distribution Procurement & Supply in the absence of any disagreement on the part of the Director either with the enquiry report of the sub-divisional controller or recommendation of the district controller. The distributorship involved in this writ petition is for Jamtala Hat under the police station Kultali in the district of 24 parganas (south). Applications in this regard were invited by a notification published in the Kolkata Gazette Extraordinary dated 21st June 2011. There has been litigation in the past on appointment to the same distributorship. In an earlier writ petition (W.P. No. 144 of 2010) Goutam Kumar Saha Vs. The State of West Bengal & Ors. the issue involved was whether advertisements inviting applications for filling up such vacancies were required to be published in the Official Gazette or not. In that proceeding the petitioner (who is the second petitioner in this writ petition) had complained that there was no Gazette publication and the notice was published in two local newspapers only. An Hon’ble Single Judge of this Court in a judgment delivered on 5th May 2010 allowed that writ petition holding that notifications in term of Clause 23 of the 2003 Control Order ought to be published in the Official Gazette. Thereafter the aforesaid Gazette publication was made. The writ petitioner no. 1 of which the petitioner no. 2 is a Director had applied in response to the notice in the prescribed form. Direction for spot enquiry was issued on 5th September 2011 and the spot enquiry was held on 14th September 2011 by the sub-divisional controller of the concerned region.2. The petitioners came to this Court questioning the legal validity of a notice dated 29th December 2011 and also the report of the District Controller made on 8th February 2012 in relation to the said enquiry. The notice of 29th December 2011 was addressed to a learned advocate Biswanath Charkraborty and a copy of this letter was marked to the petitioner no. 1. In this notice originating from the District Controller Food & Supplies 24 parganas (south) and ex officio Joint Director it was stipulated:-“An enquiry will be conducted from this end on 4th January 2012 at 11 A.M. in connection with your complaint dt. 15.10.2011 at the proposed godown of M/S. Kultali Food Marketing Pvt. Ltd one of the applicants in persuant to the vacancy notification no. WB(Part-I) 2011/SAR-135 dt. 21.06.2011 published in Kolkata Gazette.So you are requested to remain present in the same date & time along with pre-requisite papers.”3. When this writ petition was initially moved said Biswanath Chakraborty was impleaded as a party respondent along with various functionaries of the Food & Supplies Department of the State Government. It had been argued on behalf of the petitioners at that stage the identity of the individual whose interest the said learned advocate was representing was not known to the petitioner. Subsequently such identity was disclosed and the petitioner came to learn that another applicant for the distributorship Barun Ghosh had made a complaint over eligibility of the petitioner and on the basis of such complaint the petitioner and on the basis of such complaint the enquiry was being directed. By an order passed on 5th March 2012 said Biswanath Charkraborty was struck off from the array of respondents and Barun Ghosh was added as a respondent in this proceeding. Said Barun Ghosh has also participated in the proceeding through his learned advocate.4. Complaint of Barun Ghosh related to allegations deficiency on the part of the petitioner in fulfilling the conditions for appointment. The report of the district controller and Joint Director dated 8th February 2012 also gives certain conclusions as regards location and size of godown of the writ petitioners and discloses shortcomings in relation to the land and godown of the petitioners whereas for Barun Ghosh his finding is that the same satisfies all the requirements. Learned counsel for the petitioners has assailed the process of enquiry started by the district controller on the ground that such enquiry is contrary to the provisions contained in Clause 23 of the 2003 Order. It has also been submitted on behalf of the petitioners that said Biswanath Chakraborty had joined the legal profession after retiring from the post of an officer of the food and supplies department and he had exerted his influence on the department on behalf of his client to initiate such enquiry. The manner in which an enquiry is to be conducted while considering applications for appointment of a distributor is contained in clause 23 of the 2003 Order and the said clause stipulates:-“Clause 23 : Appointment of Distributor-(i) In the event of a vacancy arising out of death or resignation of an existing Distributor or for better functioning of the PDS in a particular area the vacancy is to be declared with the approval of the Government. The concerned SCFS will report the vacancy to the respective DCFS within 10 days from the date of receipt of vacancy report and the DCFs will transmit the same to Director-DDP & S for necessary action in the matter. The Director-DDP & S after obtaining necessary approval from the Government shall declare such vacancy through public notification/advertisement in the concerned SCFS/DCFS office for new vacancy only. Where vacancy arises due to death incapacitation on medical ground for existing Distributor such vacancy shall not initially be notified. In such cases prayer of the legal heirs will be considered with preference on compassionate ground provided required minimum qualifications are fulfilled if out of several legal heirs one legal heir is the claimant he is to submit no objection of other legal heirs along with his prayer.This order will not take effect when both husband & wife possess separate licences and one of them dies Government is the final authority for such appointment.(ii) The applications having been received from the bonafide citizen of the State for appointment of Distributor against particular vacancy the SCFS shall enquire within two weeks from the last date of receipt of the applications and the report so prepared shall be sent with his comments to the concerned DCFS. The said DCFS will forward the same with his recommendation to the Director-DDP & S. The Director-DDP & S after obtaining necessary approval from the Government shall arrange or empower any officer for issue of appointment letter together with licence in prescribed Form.(iii) If the Director-DDP & S in any particular case does not agree with the enquiry report of SCFS or recommendations of DCFS as the case may be he shall arrange enquiry into the matter by any competent officer or by a team and thereafter shall forward the case with his comments to the Government for necessary approval.The Distributor so appointed shall have to deposit a licence fee of Rs. 500/- and the licence shall remain valid for two years from the date of issue. The licence thereafter shall be required to be renewed every year against a renewal fee of Rs. 200/- subject to satisfactory performance of the licencee. If there is any adverse report against any Distributor Government will have the full right to terminate such Distributorship. Besides the licence fee the Distributor shall be required to furnish a security deposit of Rs. 10 000/- at the initial stage in the form of National Savings Certificate Kishan Vikash Patra etc. pledged in favour of the Governor or West Bengal.(iv) While appointing a Distributor the concerned authority that is the SCFS/DCFS shall take into consideration the volume of business number of Dealers to be tagged with the Distributor and other factors as may be required for examination in the interest of PDS.(v) In the event of loss/defacement/damage of the licence so issued to a Distributor the Distributor may apply for a duplicate licence on deposit of Rs. 1000/- only and Director-DDP & S shall arrange or empower any officer for issue of the duplicate licence after proper enquiry made by the DCFS/SCFS from the date of application.”5. In this case admitted position is that the sub-divisional controller had given his report after conducting enquiry and this enquiry on the whole found the petitioner no. 1 to have fulfilled the requisite eligibility conditions. Report in this regard was made on 16th September 2011 as it appears from Annexure “R5” of the affidavit-in-opposition filed by the district controller on behalf of the State-respondents. Said Barun Ghosh had obtained copies of the enquiry reports upon application made under the Right to Information Act 2005 and thereafter lodged complaint against the petitioner no. 1 through his learned Advocate. A copy of this complaint has been mad Annexure “R6” of the said affidavit. This complaint is primarily on two counts. First is that the godown of the petitioner no. 1 is situated outside the notified area. Secondly it has been alleged that the land of the petitioners suffers from certain defects being “Sali” land meaning agricultural land with recorded barga and also detached from the main road by a waterbody. The report of the district controller corroborates these allegations.6. In this petition however on behalf of the petitioners what has been questioned is not the finding of the district controller but his authority to conduct an enquiry and arrive at a finding at that stage which the learned counsel for the petitioners has termed as “midway enquiry”. The manner in which the enquiry has been conducted has been argued to be contrary to the provisions of the 2003 Order. Case of the petitioners is that under the scheme of clause 23 of the 2003 Order the district controller is not vested with any power to conduct enquiry for ascertaining the correctness of the sub-divisional controller’s report. He has to give his recommendation and if the Director disagrees with either the report of the sub-divisional controller or the district controller he is empowered to get fresh enquiry done through an officer of team of his choice and thereafter forward the case to the Government for necessary approval.7. Stand of the State-respondents in this case as reflected in the affidavit of the district controller is that the district controller in the case of petitioners had forwarded the report of the sub-divisional controller without any comment. It was for this reason the Director DDP & S had sent back the enquiry report to the district controller. It has been stated in paragraph 4(n) of this affidavit:-“On 18.11.2011 the District Controller Food and Supplies South 24 Parganas forwarded the report of Sub-Divisional Controller Food and Supplies Baruipur without his recommendation as required under the statute to the Director DDP&S and thereafter on 14.12.2011 the Director concerned in exercise of the power conferred under Clause 23 (iii) of the Control Order 2003 sent back the enquiry report to the said District Controller Food and Supplies South 24-Parganas for enquiry as well as to relook into the matter in pursuance of the letter written by the said Lawyer of Mr. Barun Ghose and further directed the said District Controller Food and Supplies South 24-Parganas to make specific recommendation as required under the Control Order 2003. Photocopy of the said forwarding letter dated 18.11.2011 issued by the District Controller Food and Supplies South 24-Parganas and the said letter dated 14.12.2011 issued by the Director DDP&S are annexed hereto and collectively marked as “R7”.”8. On behalf of the respondents preliminary objection has been raised on maintainability of the writ petition. It has been submitted that as no final decision has been taken in respect of application of the petitioner and the Writ Court ought not to interfere at the decision making stage. I find that what has been alleged in this proceeding is deviation from the statutory scheme of decision making. In the event such allegation is found to be correct that would invalidate the final outcome of the decision making process. Thus in my opinion it is permissible while exercising my jurisdiction under Article 226 of the Constitution of India to interfere in the decision making process also if it is found that such process is being conducted in a manner inconsistent with the statutory scheme. I shall confine my scrutiny in this judgment on this limited issue and accordingly reject the preliminary objection. On behalf of the petitioners certain authorities were cited in support of their case that a writ petition is maintainable in cases where there is threat of breach of legal right also but as I am rejecting the preliminary objection I do not consider it necessary to refer to these authorities.9. In an unreported judgment of this Court in the case of (W.P. No. 1792 of 2005 Biswajit Adak Vs. State of West Bengal & Ors.) decided on 18th May 2006 the dispute related to appointment of a distributor in the district of Purba Medinipur. In this judgment the sphere of power of the sub-divisional controller and the district controller for the purpose of appointment of a distributor was examined by an Hon’ble Single Judge and it was held:-“With respect to the question of power of the sub-divisional controller to make recommendations I find that the provisions in para 23 are absolutely clear that he did not possess such power. He possessed the power to recommend only in the case of appointment of a dealer’ and not a distributor. In the present case his powers were limited to making only comments regarding the inquiry. The authority to recommend was the district controller exceeded the limits of his statutory powers by making recommendations in favour of the candidates. The recommendations were rightly ignored by the district controller.”This judgment was carried up in appeal and the Hon’ble Appellate Bench confirmed the judgment by a decision delivered in APO No. 316/2006 (State of West Bengal Vs. Shri Biswajit Adak) on 6th December 2006 holding:-“From a plain reading of the above rule it appears to us that the Sub-divisional Controller of Food and Supply has to enquire within the time limit fixed by the Statute by himself and he has not been given any power to constitute any team or to delegate the same to any other person. It is the settled position of the law that when the language of the Statute is very clear in terms no further interpretation is to be given. We do not find there is any ambiguity in the language mentioned in the said clause (ii). Our interpretation will be borne out by the same provision wherein the Government has given power to delegate to any officer for issuance of appointment letter. It is clear from clause (ii) that all the officers have been given specific obligation to discharge and they are to discharge in terms thereof and they have no option but to do so by themselves and none else and this may also be clear from the provision of clause 19 (ii) as rightly pointed out by Mr. Bandopadhyay that wherever power of delegation is given it is done expressly. As such we are unable to subscribe the argument advanced by Mr. Bhattacharjee and also by Mr. Sanyal that the Sub-Divisional Controller of Food and Supply had rightly constituted the committee for inspecting team. There is no whisper in the said order that he has been given such power. Power in favour of any particular person cannot be inferred. It must be express and explicit in the Statute. the Court of Law cannot supply any lacuna when there is no lacuna upon reading the Statute.”10. Contention of the petitioners before me is that the district controller overreached his power by conducting the enquiry which is within the domain of the sub-divisional controller. Learned counsel for the State-respondents sought to defend the impugned action arguing that such enquiry was conducted as per instruction of the Director D.D.P & S. in terms of sub-clause (iii) of clause 23 which empowers the Director to arrange an enquiry into the matter by any competent officer or a team. In the light of these submissions two issues emerge for adjudication on the limited point on which I am to test the impugned action. First is whether the context in which such enquiry is contemplated in the 2003 Order existed in this case and secondly if it did whether such enquiry could be directed to be undertaken by the district controller.11. It has been stated on behalf of the State that at the initial stage the report of the sub-divisional controller was sent to the Director without the recommendation of the district controller which prompted the Director to send the matter back to the district controller. Simultaneously the district controller was asked to conduct enquiry and take a relook into the matter in the light of the complaint of said Barun Ghosh. The question which arises here is as to whether it was permissible on the part of the Director to have the enquiry conducted by the district controller. As per the Control Order enquiry at the base level is to be conducted by the sub-divisional controller which is to reach the Director through the Controller with the latter’s recommendation. The Director assumes the power to conduct enquiry only if he does not agree with the enquiry report of the sub-divisional controller or recommendation of the district controller. In such circumstances it is within the power of the Director to conduct enquiry through competent officers of his choice and direction for such enquiry could be given to the district controller also.12. But in the instant case there is no disagreement on the part of the Director with the enquiry report or the recommendation. He found that the enquiry report had come without the recommendation of the controller. If that was the case then the process of verification had remained incomplete and the proper course would have been to call for recommendation of the district controller. But the Director instead of doing so had also got the enquiry conducted by the district controller. There is no provision for enquiry being done by the district controller at the time of processing of an application for appointment of a distributor under the 2003 Order. Such enquiry can be conducted only if mandated by the Director in exercise of his power under the first part of clause 23 (iii) of the Order as a “competent officer” of the department. But the conditions for exercise of such power ought to exist – being disagreement with either the enquiry report or the recommendation. I do not think merely by taking cognizance of on the complaint of the private respondent the Director had committed any error per se. If the Director had general power of overseeing processing of such application his action could not have been faulted. But the 2003 Order specifically lays down the manner in which the authorities in the administrative hierarchy of the Food and Supplies Department are to exercise their power while processing applications for distributorship. As held by the Hon’ble Division Bench in A.P.O. No. 317/2006 there is no scope of deviation from the provisions of the 2003 Order. In my opinion for reasons discussed in this judgment there has been deviation from the statutory scheme in the instant case. However the issue of learned Advocate for the private respondent exerting influence on the department on the strength of his past employment there I do not find any evidence is there that because of his influence such faulty course was adopted and solely on this allegation I am not inclined to invalidate the action impugned in this writ petition.13. The district controller had committed error in law in undertaking a full fledged enquiry and hearing at that stage. The Director should have waited for the recommendation of the district controller or could have instructed him to make the recommendation. Fresh enquiry could have been ordered only after that stage by the Director. In these circumstances the report of 8th February 2012 as also the enquiry conducted in pursuance of the notice dated 29th November 2011 is quashed. The district controller is directed to consider the report of the sub-divisional controller and send his recommendations. The Director shall decide the matter afresh. If he is dissatisfied with either the report of the sub-divisional controller or the recommendation of the district controller then it shall be open to him to make a fresh enquiry and at that stage he may hear the two contesting parties. Thereafter the matter shall be sent to the appropriate authority of the State Government.14. Urgent certified photocopy of this order be made available to the parties if applied for be furnished to the appearing parties on priority basis.