Calcutta High Court (Appellete Side)
Sk. Mansur Haque vs State Of West Bengal & Ors on 28 April, 2011
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
1
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Jayanta Kumar Biswas
W.P. No. 15975 (W) of 2007
Sk. Mansur Haque
v.
State of West Bengal & Ors.
with
CAN No. 3248 of 2008
Mr Sagar Bandyopadhyay, Ms Soma Kar Ghosh and Mr Sanjay Kumar Ghosh, advocates, for the petitioner.
Mr Sajal K. Chakraborty and Mr Syed Nazmul Hossain, advocates, for the State. Mr Pinaki Ranjan Mitra, Mr
Asoke Nandy and Mr Sugata Mukhopadhyay, advocates, for the tenth respondent.
Heard on: April 26 and 28, 2011 Judgment on: April 28, 2011 The Court: - The petitioner in this art.226 petition dated July 24, 2007 is questioning an undated order of the Sub-divisional Controller, Food & Supplies, Burdwan, a copy whereof was forwarded to him by a memo dated June 22, 2007 (at p.94).
By the order the Sub-divisional Controller directed one Paresh Nath Garai, Inspector, Sadar-I as follows:
"You are directed to delink 287 families from Mansur Haque K.oil dealer taggthose with Purnendu Dutta, A/C. M.B. Dealer W/E from 25.6.07 as per your report which has been approved by D.C.F&S, Burdwan.
You are also instructed to verify sale memos & register to ascertain actual registration position for realistic allotment."
In 1987 the petitioner was appointed as a dealer within the meaning of the West Bengal Kerosene Control Order, 1968. Simultaneously, he was appointed as an M.R. Dealer. On the basis of certain allegations made by some office bearers of the tenth respondent (Jamar Samabay Krishi Unnayan Samity Ltd.) he was suspended in terms of the provisions of the M.R. Dealership agreement. Feeling aggrieved, he moved this Court under art.226. The Single Bench quashed the suspension and the proceedings.
2The office bearers of the tenth respondent and the tenth respondent were not parties to the petition. The office bearers of the tenth respondent lodged an appeal after obtaining leave from the Division Bench, and the Division Bench partly allowed the appeal. The Division Bench, while quashing the suspension, granted the authority concerned liberty to proceed with the proceedings in connection wherewith the petitioner was suspended.
In view of the liberty granted by the Division Bench, the Sub-divisional Controller proceeded with the proceedings and finally passed an order dated June 22, 2006 (at p.72) terminating the M.R. Dealership. At this date the petitioner was supplying kerosene as a dealer under the West Bengal Kerosene Control Order, 1968 and other essential commodities as M.R. Dealer to the beneficiaries of duly allotted 3475 ration cards.
In view of the order dated June 22, 2006 terminating the M.R. Dealership, the authority concerned transferred the petitioner's 3475 ration cards to the ninth respondent (Purnendu Datta), another dealer within the meaning of the West Bengal Kerosene Control Order, 1968 and an M.R. Dealer carrying on business from an adjoining area.
Questioning the termination order the petitioner filed a fresh art.226 petition in which an interim order was passed directing the respondents therein to resume his kerosene supply with immediate effect. Under the circumstances, on March 5, 2007 all his ration cards were withdrawn from Purnendu and restored to him, and he was permitted to function as a dealer within the meaning of the West Bengal Kerosene Control Order, 1968.
The petition in which the order dated June 22, 2006 terminating the M.R. Dealership was challenged was allowed by this Court. But liberty was given to the authority to proceed afresh. The authority again terminated the petitioner's M.R. Dealership and questioning the order of termination the petitioner filed a fresh art.226 petition that is pending in this Court.
3On June 22, 2007 when the impugned order was issued the petitioner was functioning as a dealer within the meaning of the West Bengal Kerosene Control Order, 1968 and he is still functioning as such, for this dealership has nothing to do with his M.R. Dealership. The effect of the impugned order dated June 22, 2007 is that on the basis thereof 1610 cards out of 3475 were withdrawn from him and once again allotted to Purnendu.
The only question involved in this case is whether the Sub-divisional Controller was justified in withdrawing 1610 ration cards from the petitioner.
It is evident from the order that the cards were withdrawn from the petitioner and allotted to Purnendu as per report of Paresh, and that the report had been approved by the Deputy Controller, Food & Supplies, Burdwan.
Paresh submitted the report dated June 1, 2007 in the capacity of Inspector, Sadar-I Block, Burdwan of the Food & Supplies Department and a copy thereof is at p.87. It was described as the investigation report regarding unwillingness of those ration card holders who were not willing to take supply of kerosene through the petitioner.
The substance of the report is this. In compliance with an order of the Sub- divisional Controller dated May 8, 2007 Paresh remained seated in the office of the Gram Panchayat concerned on May 24 and 25, 2007 from 10 a.m. to 5 p.m. The Prodhan had already informed the ration card holders of the village concerned. On both the days the Prodhan was with Paresh in his office. During the period the respective heads of the ration card families stood in queue and one by one deposited their respective applications.
Substance of the applications was that the applicants were willing to take supply of all essential commodities including kerosene through M.R. Dealer Purnendu. It was 4 mentioned in the report that total 287 applications were received, and that the number of cards covered by the applications was 1610.
Counsel for the petitioner has submitted that the impugned order was issued without jurisdiction. According to him, the unauthorized step to withdraw the ration cards on the basis of applications allegedly submitted by some consumers was taken mala fide at the instance of the office bearers of the tenth respondent that has become the ultimate beneficiary of the withdrawn ration cards.
Counsel for the State has submitted that the provisions of para.12 of the West Bengal Kerosene Control Order, 1968 empowered the Sub-divisional Controller to withdraw the cards for convenience of the unwilling holders thereof.
Counsel for the tenth respondent has made the same submission that the cards were withdrawn for convenience of the unwilling consumers. He has relied on a decision of this Court in Jaleswar Kundu v. The State of West Bengal & Ors., AIR 2009 (NOC) 1260 (Cal.), in support of the proposition that the petitioner had no legal right to have the withdrawn cards.
Before 2003 the provisions of para.12 of the West Bengal Kerosene Control Order, 1968 were as follows:
"12.Compliance with conditions of licence and directions, general or special. - (1) Every agent or dealer or hawker shall comply with such conditions as may be specified in the licence granted and also with such general or special directions as may from time to time be given to him by the Director or the District Magistrate having jurisdiction for the purpose of giving effect to the provisions of this order.
(2)Without prejudice to the exercise of the power conferred by sub-paragraph (1), such directions may, subject to the provisions of this Order provide for -
(a)the manner and form in which an agent or a dealer shall maintain the accounts and registers and shall submit the returns or reports required to be maintained and submitted by him.
(b)the regulation of distribution of kerosene, as may be required in the exigencies of circumstances prevailing in a particular area, at any time which may, inter alia, include-
(i) fixation of a minimum quota of kerosene per family per month in any area depending on the availability thereof;5
(ii) linking of family/individual ration cards against dealers under this Order;
(iii) disatribution of kerosene on production of family/individual ration cards;
(iv) issue of special quota to any institution, establishment requiring kerosene for its own consumption."
By an order dated November 25, 2003 the following amendments were made in para. 12 of the Order:
Existing Provisions Amended Provisions
"12(1) Every Agent or Dealer or hawker The term hawker is Deleted.
shall comply with.
12(2)(b)(1) (i)Fixation of a minimum quota of Fixation a minimum quota of
kerosene per family per month. kerosene head per month.
12(2)(b)(ii) (ii)Linking of family/individual ration The word 'family' is omitted.
card against dealers under this order.
12(2)(b)(iii) (iii)Distribution of kerosene on production The word 'family' omitted.
of family/individual ration card.
12(2)(b)(iv) (iv)Issue of special quota to any institution, 12(2)(b)(iv) Deleted."
establishment requiring kerosene for its
own consumption.
Previously ration cards were to be issued only in certain areas of the State under provisions of the West Bengal Rationing Order, 1964 and there was no other statutory provision for issuing ration cards in areas to which the order was not applicable. The order was repealed by a notification dated November 25, 2003 of the Food & Supplies Department, Government of West Bengal.
The West Bengal Public Distribution System (Maintenance and Control) Order, 2003 came into force on February 01, 2004 and para.3 thereof provides that every bona fide citizen of India having resided permanently in the State of West Bengal will be entitled to have a ration card to be issued by the authority under the Food & Supplies Department, Government of West Bengal.
A ration card is to be issued to an individual, and not to a family or the head of a family. There is no provision for withdrawing a ration card from a dealer and allotting it to another dealer.
6The Food & Supplies Department of the Government of West Bengal issued an order No. 4546-FS dated October 23, 2000. The context in which it was issued is quoted below:
"Tagging of ration cards of the consumers to their neighbouring S.K.O. shops and its resultant effect on the viability of S.K.O. dealership has recently given rise to many problems. Therefore, after taking into consideration the convenience of the consumers under the P.D.S., number of S.K.O. dealers in the areas, economic viability of the S.K.O. dealers and other relevant factors, the guidelines below in respect of tagging/deletion of Ration Cards to a S.K.O. dealers' shop, shall henceforth be strictly followed."
The guidelines are the following:
"1) Ration Card of a S.K.O. consumer under the P.D.S. shall, as far as possible, be tagged to his nearby S.K.O. dealer.
2) In order to maintain the economic viability of a S.K.O. dealer, efforts shall be made to allot 3500 to 4000 Ration Cards to him depending upon the number of S.K.O. dealers in the area.
3)In case of suspension of a S.K.O. dealership the Ration Cards of the suspended S.K.O. dealer shall be tagged to his nearest S.K.O. dealer/dealers. In such cases the number of Ration Cards increased temporarily should be manageable.
4)In areas where the number of Ration Cards of any S.K.O. dealer remain below the economic viability level and if there is no possibility to enhance the number of Ration Cards, such S.K.O. dealers may either continue their dealership with such minimum allocation of Ration Cards or opt to surrender the dealership to help increase the viability of the neighbouring dealer, or pray for new licence against the vacancies to be declared elsewhere in future.
5)Tagging /deletion of Ration Cards shall be done by the concerned Area Inspector/Chief Inspectors only with the prior approval of the S.K.O. licencing authority."
At the date the impugned order was issued the Government Order dated October 23, 2000 was in force. The effect of the Government Order was considered by a Division Bench of this Court that gave a decision on April 4, 2007. The decision was given in Anil Kumar Shaw v. The State of West Bengal & Ors., 2007(2) CLJ(Cal) 269. The Division Bench held that the terms and conditions of the Government Order were binding and mandatory in nature.
Admittedly, on June 22, 2007 the petitioner's total ration cards were 3475, which means that at that date he was having less than the minimum 3500 ration cards to which a kerosene dealer is entitled in terms of the Government Order dated October 23, 2000. Hence citing convenience of consumers, but ignoring the economic viability of the 7 dealership,- the real spirit of the Government Order, no-one could withdraw from the petitioner even a single card for any purpose.
It is evident from the impugned order that the aspect of economic viability of the petitioner's dealership was not considered by the authorities deciding to withdraw as many as 1610 cards from him out of his total 3475 cards. Hence there can be no doubt that the order was issued in gross contravention of the Government Order dated October 23, 2000.
The provisions of para.12 of the West Bengal Kerosene Control Order, 1968 empowered the authority to withdraw cards from the petitioner. That does not mean that the authorities were empowered to withdraw cards according to their wish. They could withdraw the cards only according to the Government Order dated October 23, 2000. There was no reason to terminate the petitioner's dealership. Nor did the petitioner request the authorities to withdraw any card from him.
These all lead to the question whether on the basis of the report dated June 01, 2007 submitted by Paresh the authorities could withdraw 1610 cards from the petitioner on the grounds that the card holders through their respective family heads submitted applications expressing their unwillingness to take supply of kerosene from the petitioner and willingness to take supply from Purnendu.
It is to be noted that for taking supply of kerosene from the petitioner and supply of other essential commodities from Purnendu all the 3475 card holders were using the same cards, and that it was lawfully permissible.
The procedure for withdrawing the cards followed by the authorities was a unique one. The Prodhan of the Gram Panchayat concerned asked the villagers beforehand to submit their respective applications in the Panchayat office where the Prodhan and the 8 Inspector(Paresh) remained present two days from 10 a.m. to 5 p.m., presumably, for collecting the applications.
The office bearers of the tenth respondent were successful in initiating the proceedings against the petitioner against whom nothing was found to terminate his dealership under the West Bengal Kerosene Control Order, 1968. The withdrawn cards initially allotted to Purnendu were finally allotted to the tenth respondent by an order dated October 24, 2007.
The tenth respondent was appointed as an M.R. Dealer and also as a dealer within the meaning of the West Bengal Kerosene Control Order, 1968; and it is not disputed that it has been appointed through a process in which no vacancy was declared and notified, and no advertisement was published inviting applications for the dealership, though these are the mandatory requirements for appointing a dealer. Thus the ultimate beneficiary of the withdrawn cards is the tenth respondent.
The petitioner has produced applications from some of the persons who had submitted applications for withdrawing the cards from him and transferring them to Purnendu, to show that subsequently the same persons submitted applications to the authorities stating that they had been misled by the persons who, having vested interest and for succeeding in their conspiracy against the petitioner, engineered the applications that they were unwilling to take supply of kerosene from the petitioner.
The Sub-divisional Controller, the Inspector and the Prodhan of the Gram Panchayat concerned, it is evident, together invented a unique procedure to abuse the power given by the provisions of para.12 of the West Bengal Kerosene Control Order, 1968 to withdraw ration cards from one dealer for allotting them to some other dealer.
In the whole process the petitioner was not involved, though he was the victim and his dealership has been made a dying dealership. For keeping the dealership economically 9 viable he was entitled to at least 3500 ration cards. He was having 3475 cards and out of them through the process 1610 cards were withdrawn.
On these facts, there cannot be any doubt that persons having vested interest engineered the whole process, generated purported applications using names of the family heads, when, admittedly, the heads were not authorized to deal with the ration cards of the respective individuals, and gave the whole thing a convenient excuse of convenience of the card holders.
Ignoring the economic viability of the dealership, the principal spirit of the Government Order dated October 23, 2000, not a single card could be withdrawn from the petitioner. The persons making the scheme gave no importance to the Government Order. In my opinion, the impugned decision is totally without jurisdiction and vitiated by gross arbitrariness.
For these reasons, I set aside the order dated June 22, 2007, allow the petition to this extent and direct the respondents to restore the withdrawn cards to the petitioner within a week from the date of communication of this order. CAN No. 3248 of 2008 shall be deemed to be disposed of. No costs. Certified xerox.
Ss(c); Ab(f) (Jayanta Kumar Biswas, J.)