Calcutta High Court (Appellete Side)
Farid Mondal vs Abdul Gani Mondal & Ors on 1 February, 2012
Author: Soumen Sen
Bench: Pinaki Chandra Ghose, Soumen Sen
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In the High Court at Calcutta
Civil AppellateJurisdiction
Mandamus Appeal
A.S.T. No. 153 of 2011
A.S.T.A. No. 119 of 2011
(Arising out from W.P.No.11888 (W) of 2010)
Farid Mondal
Vs.
Abdul Gani Mondal & Ors.
BEFORE:
HON'BLE JUSTICE PINAKI CHANDRA GHOSE, J.
AND HON'BLE JUSTICE SOUMEN SEN, J.
For the appellant : Mr. Debabrata Saha Roy, Adv.,
Mr. Pingal Bhattacharyya, Adv.,
For the respondent : Mr. Molay Bose, Adv.,
Mr. Tulsi Das Roy, Adv.,
Mr. Himangshu Ghosh, Adv.,
Mr. Tapan Roy, Adv.,
Heard on : 29.04.2011, 06.06.2011, 16.06.2011
Judgment on : 01/02/2012
Soumen Sen , J. : The instant appeal is arising out of an order dated 25th
February, 2011 by which the learned single Judge directed the respondent authorities to allot kerosene equally i.e. on 50:50 basis between the writ 2 petitioner and Md. Farid Mondal, the appellant herein, in terms of an order dated 22nd September, 2009 passed by Sub-Divisional Controller (F&S), Tehatta Sub- Division, Nadia and allowed the writ petitioner to sell kerosene oil to the ration card holders as well as other customers to run the business of the petitioner.
The instant appeal is at the instance of Md. Farid Mondal who was not made a party in the writ petition.
When the appeal was moved we admitted the appeal and allowed Md. Farid Mondal to prefer the instant appeal since we were of the view that the said order is likely to affect Md. Farid Mondal and he should have been made a party in the writ petition as the proposed equal distribution of kerosene oil would curtail the right of Md. Farid Mondal to sell kerosene oil to its card holders.
In the appeal the appellant raised the question that a person having licence under Control Order, 1968 would not be entitled to sell kerosene to the ration card holders and such ration card holders are entitled to obtain their kerosene oil against the ration cards from the fair price shop under the Control Order, 2003.
The appellant claims to own a fair price shop owner under Tehatta Sub- Division, District Nadia. He was appointed as M.R. Dealer on or about 1981. The appellant is holding two separate licences, one under the Control Order, 2003, and another under the Control Order, 1968. The writ petitioner has been 3 granted a licence in the year 1981 under the West Bengal Kerosene Control Order, 1968 and has been holding such licence till date.
The appellant submits that in order to deal with rice, wheat, sugar, kerosene, etc., separate licences were granted to the appellant. However, after repealing of those control orders (excepting Kerosene Control Order, 1968), those licences are no more required for the purpose of dealing with such items.
The appellant claims that since the date of his appointment as M.R. Dealer, the said appellants have been distributing ration articles to his tagged ration card holders on the basis of M.R. Dealership Agreement, executed by and between the appellant and the licensing authority i.e. the Sub-Divisional Controller (F&S), Krishnanagar/Tehatta.
In the year, 2001, Central Government for maintaining supplies and distribution of essential commodities under Public Distribution System (P.D. System), framed Public Distribution System (Control) Order, 2001 (hereinafter referred to as the Control Order, 2001) in exercise of the power conferred by Section 3 of the Essential Commodities Act, 1955. The said Control Order extends to the whole of India and the same came into force with effect from 31st August, 2001.
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Fair Price Shop, Fair Price Shop Owner, Public Distribution System and Ration Card have been defined in the said Control Order, 2001 in the following manner: -
Fair Price Shop - means a shop which has been licensed to distribute essential commodities by an order issued under Section 3 of the Act to the ration card holders under the Public Distribution System.
Fair Price Shop Owner - means a person in whose name a shop has been licensed to distribute essential commodities under the Public Distribution System.
Public Distribution System - means a system for distribution of essential commodities to the ration card holders through Fair Price Shop such as rice, wheat, sugar, edible oil, kerosene and such other commodities as are notified by the Central Government under Clause (a) of Section 2 of the Act. Ration Card - means a document issued under an order or authority of the State Government for the purchase of essential commodities under the Public Distribution System from the Fair Price Shop."
Clause 7, Clause 8, Clause 9 and Clause 10 of the said Control Order, 2001 deals with the provisions regarding procedure for grant of licence to the 5 Fair Price Shops, monitoring of Fair Price Shops, penalty and power of the authorities to search and seizure.
Clause 14 of the said Control Order, 2001 reads as follows: -
"14. Provisions of the Order to prevail over previous Orders of State Governments. - The provisions of this Order shall have effect notwithstanding anything to the contrary contained in any Order made by a State Government or by an officer of such State Government before the commencement of this Order except as respects anything done, or omitted to be done thereunder before such commencement."
Clause2(2) of Annexure to the said Control Order, 2001 reads as follows:
"2(2) - The ration card holders shall be entitled to draw essential commodities from a Fair Price Shop on weekly basis."
Clause 3 of Annexure to the said Control Order, 2001 reads as follows: -
"3. Scale of issue and issue price. - (1) The Central Government shall make available to the State Governments foodgrains for distribution under the Public Distribution System to various categories of beneficiaries at such scales and prices, as may be specified from time to time. 6 (2) The State Governments shall not divert the allocations made by the Central Government for distribution under the Public Distribution System."
Clause 5 of Annexure to the said Control Order, 2001 reads as follows: -
"5. Licensing. - State Governments shall issue an order under Section 3 of the Act for regulating the sale and distribution of the essential commodities. The licences to the fair price shop owners shall be issued under the said order and shall lay down the duties and responsibilities of the fair price shop owners. The responsibilities and duties of fair price shop owners shall include, inter alia, .................."
From 'B' (under Clause 8 of the said Control Order, 2001 prescribe the proforma for reporting and functioning of Fair Price Shops at District Level wherein under head (f), Kerosene has been defined as ration articles along with other P.D. items.
In exercise of power conferred by Section 3 of the Essential Commodities Act, 1955, read with the said Control Order, 2001, State Government framed a Control Order for maintaining supplies and securing availability and distribution of essential commodities under the Public Distribution System. The said order is 7 called "The West Bengal Public Distribution System (Maintenance & Control) Order, 2003".
In the said Control Order, 2003, the State Government stipulated the entire procedures regarding appointment of Fair Price Shop owners and distribution of ration articles to the ration card holders.
After coming into force the Control Order, 2001 and Control Order, 2003, all ration articles including kerosene oil is to be distributed only through the Fair Price Shops. Each and every articles which are being distributed against production of ration cards are called ration articles and all those ration articles are being distributed to the ration card holders at a subsidized rate.
For preventing and controlling black-marketing of subsidized kerosene oil (ration articles), the Central Government defined blue kerosene oil which are only being distributed as ration articles through Public Distribution System i.e. only from Fair Price Shop in all over the India and so far white kerosene oil is concerned, the same is being distributed in parallel marketing system.
Licence holder under West Bengal Kerosene Control Order, 1968, can only deal with white kerosene which are not ear-marked as ration articles and are not being distributed through Public Distribution System at a subsidized rate on production of ration cards unless and until he or she obtained licence of Fair 8 Price Shop under Control Order, 2003. However, for dealing with any type of kerosene oil (blue and white), licence under paragraph 6 of the West Bengal Kerosene Control Order, 1968 are required.
Fair Price Shop Licence is an entry to distribute ration articles which includes rice, wheat, sugar, edible oil, kerosene oil etc. Previously, for dealing with rice, wheat, sugar, edible oil, different licences were required and all M.R. Dealers as a consequence to their M.R. Dealership Agreement had automatically been provided with such licences, however, after repealing of those Control Orders (excepting Control Order, 1968), such licences are not presently required.
Fair Price shop owners (Fair Price Shop Licence holders) under the said Control Order, 2003 are automatically became eligible and entitled to get Kerosene Oil Dealership Licence so that they can distribute kerosene oil to their tagged ration card holders.
West Bengal Kerosene Control Order, 1968 does not give any right to the Licence holder to distribute ration articles under Public Distribution System.
Clause 2(f) and (j) of Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1993 deals with parallel marketing system and Public Distribution System of Kerosene Oil.
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Clause 8 of the said Control Order, 1993 categorically states that kerosene supply through Public Distribution System shall be distinguishable from the kerosene to be imported, sold or distributed under parallel marketing system by use of suitable measures to be adopted by the Government, Oil Companies as and when necessary.
After coming into force of West Bengal Public Distribution System (Maintenance & Control) Order, 2003, mere holder of a Kerosene Oil Dealership Licence under the provisions of Paragraph 6 of West Bengal Kerosene Control Order, 1968 is not entitled to distribute kerosene oil (blue) at a subsidized rate to the ration card holders under the Public Distribution System.
The appellants in short raised the following issues for the purpose of setting aside the impugned order dated 25th February, 2011:
I. After coming into force Public Distribution System (Control) Order, 2001 and West Bengal Public Distribution System (Maintenance & Control) Order, 2003, mere holder of a Kerosene Oil Dealership Licence, issued under West Bengal Kerosene Control Order, 1968, cannot distribute kerosene oil (blue) to the ration card holders under Public Distribution System.
II. Unless and until Fair Price Shop Licence is granted under the provisions of Control Order, 2003, none can distribute blue kerosene 10 (ear-marked for rationees) on production of ration cards under Public Distribution System.
III. Obtaining Fair Price Shop Licence under Control Order, 2003 is an entry to the Public Distribution System to deal with ration articles and obtaining licences under various Control Orders, including Kerosene Oil Dealership Licence issued under the provisions of the Control Order, 1968 make the Fair Price Shop owner eligible to deal with those articles, which includes kerosene oil.
IV. A holder of Kerosene Oil Dealership Licence (without any Fair Price Shop Licence) can deal with white kerosene in parallel/open market but he cannot deal with blue kerosene oil under Public Distribution System.
Per contra, the writ petitioner/private respondent urged that in proceedings initiated earlier before this Hon'ble Court by the dealers like the present writ petitioner, an order was passed in C.O. No.16011(W) of 1993 along with C.O. No.19035(W) of 1995 and C.O. No. 13544(W) of 1990 (Tejaul Sk. With Basudev Ghosh & Ors. Vs. The District Controller, Food and Supplies & Ors) on the basis of which they are entitled to sell kerosene even to the tagged ration cardholders.
In the said proceeding it was urged that the petitioners had been carrying on business as dealer of kerosene oil under the licence issued under the West 11 Bengal Kerosene Control Order, 1968. In the year 1986 modified ration dealer who dealt with ration articles through the Public Distribution System were also made dealer under the Kerosene Control order and supply of kerosene to the petitioners were stopped altogether despite the subsistence of the licences in their favour.
It was further argued that in the Kerosene Control Order, there is no prohibition that licence in respect of dealership in kerosene could only be issued to a modified ration dealer or it has to be distributed only through Public Distribution System nor there was any prohibition of granting licence as a dealer in kerosene to any person. After considering the rival contention, the Hon'ble Single Bench framed the issue as under:-
"The Ultimate question, therefore, which has come up before this Court for determination whether the respondents are entitled to take away the right of the kerosene dealers having valid licence under paragraph 6 of the Kerosene Control Order carrying on their business as a kerosene dealer, either directly or indirectly without amendment the provisions of the Kerosene Control Order."
The learned Single Judge held that the answer to such a question must be in the negative and held as follows:
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"The petitioner admittedly have been granted licence under the said Kerosene Control Order for the purpose of carrying on business as a dealer and admittedly their being supplied the requisite quantity of kerosene to be sold by them to the consumers.
The respondents, therefore, cannot take away such right of the petitioner to carry on such business either directly by refusing to supply any kerosene oil to such dealers or indirectly by issuing directions that such kerosene oil can be sold only to a ration card holder and no ration card holder can purchase kerosene in a week from more than two sources.
I am not oblivious of the fact that the policy of the government being to make essential commodities available to the consumers in fair price, the Government certainly can decide to make such commodities available to the consumers through Public Distribution System by approaching its agents."
The writ petitioner finding that the respondent authorities were not making equal distribution of kerosene oil to the writ petitioner and one Md. Farid Mondal, M.R. Dealer, a writ petition was filed challenging such arbitrary action in W.P. No.24550 (W) of 2006 in which a prayer was made for equal distribution of kerosene oil along with the nearest M.R.-cum-Kerosene Oil Dealer. The said writ petition was disposed of by learned single Judge of this Hon'ble Court on 29th September, 2006 by directing the concerned authorities to consider the representation of the writ petitioner regarding equal distribution. 13
The writ petitioner urged that in compliance of the said order, Sub- Divisional Controller, Food & Supplies, Tehatta, Sub-Division passed an order on 18th January, 2007 directing that both Kerosene Dealer and M.R. Dealer would henceforth get allotment equally i.e. 50:50 basis.
In view of the failure of the Inspector, Food & Supply, Tehatta-I to implement the aforesaid order dated 18th January, 2007, another writ petition was filed before this Hon'ble Court being W.P. No.24275 (W) of 2008 in which an order was passed on 17th September, 2008, directing the Sub-Divisional (F&S) Controller, Tehatta Sub-Division, Nadia, to take a decision on the issue of equitable distribution of kerosene oil.
Following the aforesaid order, the authority concerned passed an order on 22nd September, 2009, directing the said Inspector to issue Kerosene Oil Allotment Order equally i.e. on 50:50 basis between the writ petitioner and the said Farid Mondal.
It is submitted that the said Inspector being the respondent No.7 although was required to delink the ration cards from the nearest M.R.-cum-Ration Card Dealer and relinking the same with the shop of the petitioner in such a way so that proper distribution of kerosene oil could be made to the consumers but the said respondent No.7 failed and neglected to do so thereby preventing the writ 14 petitioner from enjoying the benefits of the said order. The writ petitioners have given particulars of the number of ration cards which should have been allotted in favour of the writ petitioner and which the respondent authorities have failed to allot resulting in deprivation of the right of the petitioner to get the benefit of such allotment.
Subsequently, the said respondent No.7 issued an Allotment Order dated 4th January, 2010 by which the respondent allotted 587 litres kerosene oil in favour of the appellant but no allotment was made in favour of the writ petitioner. It was urged before the learned single Judge that unless Allotment Order is made in terms of the Order dated 22nd September, 2009, the writ petitioner would suffer irreparable loss.
The said writ petition was filed in May, 2010, and considered on 25th February, 2011 in the presence of the said respondents.
Although in the writ petition, allegations have been made that the writ petitioner had been deprived of getting equal distribution of kerosene oil at the instance of Farid Mondal but Farid Mondal was not made party to the said proceeding. The learned single Judge passed an order in terms of Prayer (g) of the writ petition which is reproduced hereinbelow:
"g. Ad-interim order of direction directing the respondents to allot kerosene oil equally (50:50 basis) between the petitioner and Md. Farid Mondal in 15 terms of the order dated 22nd September, 2009 passed by the Respondent No.6 and allow the petitioner to sell kerosene oil to the Ration Card holders as well as other customers to run the business of the petitioner."
Being aggrieved by the said order, the present appeal has been preferred by the M.R. Dealer primarily on the ground that the said order could not have been passed without hearing the appellant.
In the stay application, the appellant did not dispute the existence of Memo dated 12th September, 2009 by which the respondent No.7 was instructed to take immediate steps for issuing Kerosene Oil Allotment Order equally i.e. on 50:50 basis. The appellant contends that due to agitation and/or objection and/or refusal of the consumers, the said Order dated 12th September, 2009 could not be given effect to and the matter was ultimately resolved by the Director of the Consumer Goods, West Bengal.
The said Director advised the Sub-Divisional Controller (F&S), Tehatta to place before the District Magistrate, Nadia and District Controller (F&S), Nadia to resolve the said problem. The reason for such reference would appear from the letter dated 23rd/26th April, 2010 which is reproduced hereinbelow: 16
"Sub: - Problem on equal distribution of S.K.Gil amongst the dealers tagged with the two agents namely, Abdul Gani Mondal, K.Oil dealer and Farid Mondal, FPS and cum K.Oil dealer.
Ref: - i) Your's Memo. No.534/DC/10 dt.17.3.2010
ii) This Office's Memo. No.CG/Legal/2008/148 dt.17.9.2008.
The tagging of R/C holders has been made 50:50 between Abdul Gani Mondal, K.Oil dealer and Farid Mondal, FPS cum K.Oil dealer. But the newly tagged R/C holders of Abdul Gani Mondal are not ready to lift K.Oil from the said dealer. The matter was taken up with the D.C.G and local settlement was requested to the D.M., Nadia giving due weightage to the desire of end users.
Now, as per his communication referred above the undersigned is directed to say him that please take up the matter with D.M., Nadial and send a report."
The District Controller upon receipt of such communication directed the Sub-Divisional Controller (F&S) to take necessary action and send report after taking into consideration the view expressed by the Director of Consumer Goods by a communication dated 16th June, 2010. In the said communication, the District Controller (F&S) also recorded the earlier view of the District Magistrate, Nadia, who at that point of time opined to settle the matter by giving weightage to option of ration card holders and other points.
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Upon receipt of such communication, the Inspector held a field enquiry and upon such field enquiry suggested relinking of ration cards and dealership of the petitioner as per desire of option of the card holders. It is submitted before us that on the basis of such instruction and the report of the Enquiry Officer and as per the desire of the card holders, the petitioner was distributing kerosene oil as also other ration articles to all the ration card holders uninterruptedly and in connection thereof some documents were annexed to the stay petition.
The writ petitioner, however, would urge that he is not aware of any such development or communication alleged in the said petition and in any event, he has right to get the kerosene oil in terms of the order dated 21st May, 2009 which has not been challenged by the appellants at any point of time.
The appellant submits that the writ petition ought to have been dismissed on suppression of material facts.
In any event, it was argued that the writ petitioner is not holding any licence under Public Distribution System (Control) Order, 2001 and accordingly he would not be entitled to sell kerosene oil to the card holders who are tagged with the appellant on the basis of the licence issued under the Control Order, 2001, and the M.R. Dealership Agreement executed between the appellant and the licensing authorities.
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On the aspect that a kerosene oil dealer would not be entitled to sell kerosene to ration card holders unless he holds a licence under the Control Order, 2001 and the Control Order, 2003, a judgment of the Hon'ble Division Bench dated 2nd August, 2010 passed in F.M.A No.1441 of 2009 was relied upon.
In that case a complain was made by a fair price shop owner that although he is having a licence of a fair price shop and he owns such a shop he was never allowed to distribute food grains to his ration card holders and his tagged ration card holders have been forced to lift their allotted quota of kerosene oil (subsidized blue kerosene oil) from the other persons, who are holding licence under the provisions of West Bengal Kerosene Control Order, 1968 (hereinafter referred to as the 'said Control Order, 1968'). In that case it was urged since the petitioner holds M.R. Dealership for distribution of ration articles and P.D. commodities to the ration card holders, he is entitled to be allotted quota of kerosene oil for its distribution to a ration card holder to its preferred shop. Such submission was made on the basis of the provisions of Public Distribution System (Maintenance and Control) Order, 2003 (hereinafter referred to as the 'said Order, 2003'), which provides that unless a person holds a licence under the said Order, 2003 for running a fair price shop he cannot be permitted to distribute kerosene oil as the same is also an essential commodity under the Essential Commodities Act, 1955 and, therefore, though the petitioner is having licence under the provisions of the said Order, 2003, he had been confined to 19 distribute only food grains such as rice, wheat, sugar and edible oil excluding kerosene oil and, therefore, the authorities should be directed to allow the petitioner to distribute kerosene oil to his tagged ration card holders from his fair price shop and he should be granted kerosene oil dealership licence to distribute kerosene oil to tagged ration card holders.
On the other hand, the respondent submitted that the said petitioner could not be permitted to distribute kerosene oil unless and until he obtains a licence under the said Control Order, 1968. It is contended on behalf of the appellant/original respondent that the said Control Order, 1968 regulates the distribution of kerosene by Oil Companies and it has not been repealed. A person holding a licence of dealership under the said Order, 2003 by itself cannot claim to supply kerosene to ration card holders tagged to his ration shop. It is contended by the appellant/original respondent that as distribution of kerosene oil is governed by the said Control Order, 1968 as amended in 2003, kerosene being a specific good, a specific licence is required to be taken under the appropriate Control Order being the said Control Order, 1968 and without such a licence the respondent (original petitioner) cannot claim for allocation of kerosene quota for the purpose of distribution of kerosene card holders and, therefore, the impugned order passed by the learned single Judge cannot be sustained in law and deserves to be quashed and set aside.
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After considering the rival submissions, the Hon'ble Division Bench held as follows:
"The only point that arises for consideration is whether a person holding a licence under the West Bengal Public Distribution System (Maintenance and Control) Order, 2003 for running a fair price shop is entitled for allocation of quota of kerosene oil for distribution of essential commodities under the Essential Commodities Act, 1955 to the ration card holder tagged to his fair price shop without having any valid licence under the said Control Order, 1968. It is not a matter of dispute that the petitioner is an M.R. dealer and as such for supply and distribution of the essential commodities under the Public Distribution System Control Order, 2001 is entitled to distribute ration articles from fair price shop such as rice, wheat, sugar, edible oil, including kerosene oil etc., but that by itself does not enable him for allocation of kerosene quota for distribution of subsidized kerosene to the ration card holder tagged to his fair price shop.
The said Control Order, 1968 regulates the maintenance of supplies and for securing the equitable distribution and availability at fair prices of kerosene in West Bengal. Paragraph 4 of the said Order, 1968 imposes a ban on trading kerosene without licence unless a person is in possession of a valid licence issued under this order. Paragraph 5 of the said Order, 1968 provides for grant of licence to agent. Paragraph 11 of the said Order, 1968 21 governs issue of delivery order or permit and paragraph 12 provides for compliance with conditions of licence and directions, general or special. The Paragraphs 4, 5, 11 and 12 reads as under: -
"4. Ban on trade in kerosene without licence. - After such date as the State Government may specify by notification in the Official Gazette, not less than 60 days from the date on which his Order comes into force, no person other than an oil distributing company shall carry on trade in kerosene unless he is in possession of a valid licence issued under the Order.
5. Grant of licence to agent. - (1) The Director may grant a licence to any agent in West Bengal authorising him to carry on trade in kerosene as such agent.
(2) A licence granted under sub-paragraph (1) shall be in Form A and shall be subject to such conditions as are specified therein and such other conditions as the Director may lay down from time to time in the interest of fair distribution of kerosene within the State.
(3) No agent shall sell, supply or transfer kerosene to any person other than a dealer duly licensed under paragraph 6 of this Order, or a holder of a permit or delivery order issued under paragraph II of this Order.
... ... ... ... ... ... ... ... ... ... ...
11. Issue of delivery order or permit. - (1) The Director or the District Magistrate having jurisdiction may issue a delivery order or permit requiring an agent within his jurisdiction to supply kerosene to - 22
(a) a dealer, or
(b) other person or establishment requiring kerosene for his or its own consumption, in any particular area, if in the opinion of the Director or the District Magistrate, as the case may be, this is considered necessary, or
(c) an agent.
[(2) No person other than an oil distributing company, an agent or a dealer shall transport kerosene or store kerosene or shall have in his possession kerosene exceeding ten litres at a time except under and in accordance with a permit issued by the Director or the District Magistrate having jurisdiction].
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;
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(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;
(ii) linking of family/individual ration cards against dealers under this Order;
(iii) distribution of kerosene on production of family/individual ration cards;
(iv) issue of special quota to any institution, establishment requiring kerosene for its own consumption.] Therefore, it can be seen that the aforesaid provisions of the said Control Order, 1968 clearly provides for the regulation and distribution of kerosene even to ration card holder. It appears that the learned single Judge proceeded to pass the impugned order without taking into consideration the said Control Order, 1968, which governs trading kerosene including its distribution to the ration card holder through a dealer who posses a licence under the said Control Order, 1968 and, therefore, unless and until a fair price shop owner (M.R. dealer) obtains a licence under paragraph 6 of the said Control Order, 1968, he is not entitled for allocation of kerosene quota for distribution of kerosene oil to the ration card holder tagged to his fair price shop. The directions issued by the learned single Judge to the 24 appellant/original respondent to ensure that the petitioner is able to distribute kerosene oil to his tagged ration card holder cannot be sustained in law and deserves to be quashed and set aside.
The contention of the petitioner/original respondent that kerosene oil can only be distributed through fair price shop under the Public Distribution System as provided under West Bengal Public Distribution System (Maintenance & Control) Order, 2003 is correct, but it is subject to the fair price shop owner applying to the licensing authority for dealership under the said Control Order, 1968. In the present case, the petitioner has applied to the District Magistrate for grant of licence under the said Control Order, 1968, but without obtaining the same has approached the Court. In the circumstances, the petitioner/original respondent was only entitled to get limited relief against the licensing authority to consider the application of the fair price shop owner for grant of kerosene oil dealership licence for the purpose of distributing kerosene oil to his tagged holder in accordance with law."
The private respondent relied upon the judgment of a learned single Judge in G.A.No.584 of 2008, G.A.No.1043 of 2008, W.P.No.27 of 2008 in the matter of Promod Chandra Ghosh Vs. State of West Bengal dated 25th August, 2008. 25
In the said proceeding a writ petition was filed by Promod Chandra Ghosh as Secretary of the Malda District of West Bengal, M.R. Dealer's Association and a Fair Price Shop owner-cum-Kerosene Oil Dealer along with General Secretary of the West Bengal M.R. Dealer's Association against the State of West Bengal and Food Commissioner primarily challenging an order issued by the Food Commissioner and the Principal Secretary of the Government of West Bengal on 19th November, 2007 by which reallocation of ration card holders tagged to individual kerosene dealers appointed under the 2003 Control Order as also the West Bengal Kerosene Control Order, 1968 (1968 Order) was passed.
In the said proceeding it was further urged that the persons who are not fair price shop owners having been granted licence under the 2003 Control Order ought not to be allowed to deal with super fine kerosene oil under the Public Distribution System on the basis of the licences issued to them under paragraph 6 of the 1968 Control Order.
Kerosene oil is distributed through two types of dealers in our Public Distribution System. One set of dealers operate through a regulatory mechanism provided under the West Bengal Kerosene Control Order, 1968 which is an Order promulgated under the provisions of Section 3 of the Essential Commodities Act, 1955. There are other set of dealers were appointed under the 2003 Control Order to deal with various other public distribution commodities along with kerosene oil. The core argument that was made in the said proceeding on behalf 26 of the writ petitioners was that the dealers under 1968 Control Order became disentitled to conduct their business of sale of kerosene oil through the Public Distribution System upon coming into operation of 2003 Control Order.
Prior to the promulgation of 2003 Control Order in terms of the decision of the Hon'ble Division Bench in Manindra Nath Sarkar Vs. Krishna Gopal Pramanic reported in 2003 (1) CLJ 164 by which the State was directed to ensure distribution of kerosene oil to both categories of dealers and the Secretary, Department Food and Supplies, Government of West Bengal was directed to formulate a guideline in that regard. The concerned authority undertook the exercise of ensuring equal distribution between M.R. Dealers and other retail dealers in kerosene for sale to consumers having ration cards.
The learned single Judge after taking note of the Control Order of 2001, the Control Order of 2003 and the Control Order of 1968, held as follows:-
"6. The Public Distribution System (Control Order), 2001 (2001 Control Order) was promulgated by the Central Government which came into effect on 31st August 2001. The 2001 Control Order was made as the Central Government found it necessary and expedient to do so for maintaining supplies and securing availability and distribution of essential commodities.
This Order lays down the framework for affecting public distribution system through fair price shops. The definitions of the expressions "fair price shop" 27
and "public distribution system" are of relevance for adjudication of the present proceeding and the same are reproduced below:
"2. (j) "fair price shop" means a shop, which has been licensed to distribute essential commodities by an order issued under Section 3 of the Act, to the ration card holders under the Public Distribution System."
"2 (l) "Public Distribution System" means the system for distribution of essential commodities to the ration card holders through the fair price shops. Such as rice, wheat, sugar, edible oils, kerosene and such other commodities as are notified by the Central Government under clause (a) of Section 2 of the Act."
"7. Subsequently in exercise of power conferred under Section 3 of the Essential Commodities Act 1955, read with the 2001 Control Order, the State Government promulgated the West Bengal Public Distribution System (Maintenance and Control) Order, 2003 which is being referred to in this Order as the 2003 Control Order. Under this order, a regulatory system for supply and distribution of public distribution commodities through a regime of licensing has been developed."
"10. As I have observed earlier, the main case of the writ petitioners is that the members of the respondent Nos. 5 and 6 or any other holder of licences under the 1968 Control Order are not entitled to carry on business of kerosene oil which is supplied and sold through the Public Distribution 28 System because of coming into effect of 2003 Control Order. Mr. Saptangshu Basu, learned Advocate led by Mr. Jayanta Kumar Mitra, learned Senior Advocate argued on behalf of the petitioners that the 2003 Control Order in substance obliterated the 1968 Control Order and the former was repugnant to the latter. My attention was drawn by the learned counsels for the petitioners to the definition of "fair price shop". It was submitted that under the 2003 Control Order, only fair price shop owners would be entitled to distribute the essential commodities to the ration card holders under the Public Distribution System. Since kerosene was included in the definition of the Public Distribution System as an essential commodity, it was contended that kerosene oil could be distributed only through the distribution mechanism devised under the 2003 Control Order. So far as the licences of the 1968 Control Order are concerned, it was argued that those dealers at best would be entitled to deal with that type of kerosene which are not meant to be sold through the public distribution system. The methodology of such distribution is prescribed in Paragraph 6 of 2001 Control Order stipulates that the State Government shall issue an order under Section 3 of the Act for regulating the sale and distribution of the essential commodities. The licences to the fair price shop owners are to be issued under the said order which are to specify the duties and responsibilities of the fair price shop owners. There are also provisions for monitoring the functioning of such establishments. The argument of the petitioners, thus, is that since kerosene oil has been declared as an essential commodity in the 2001 29 Control Order and the 2003 Control Order has been formulated in pursuance of the 2001 Control Order, fair price shops constituted under the 2003 Control Order would have the exclusive right to conduct retail sale of this product through the public distribution system."
"11. Prime facie, I am unable to accept this argument. I do not find any provision under any of these two Control Orders which specifically stipulates that all essential commodities which come within the ambit of the expression "Public Distribution System" as defined in Clause 2(1) of the 2001 Control Order would have to be distributed through a specified type of shop like "fair price shops" only. The mandate on the State Government in terms of Clause 5 of the Annexe to the 2001 Control Order to issue order under Section 3 of regulating the sale and distribution of the essential commodities does not imply, in my prima facie opinion, that those "fair price shops" which are organized after commencement of the 2003 Control Order alone will have the right to deal with all the essential commodities. If there already subsists a Control Order broadly answering the mandate of the said Clause 5, but covering a single "essential commodity", then shops organized under such subsisting Control Order would also be entitled to continue with their activities. Licences granted under such subsisting Control Order shall not be deemed to have been invalidated or excluded from the legitimate public distribution system."30
"16. I have heard the learned counsels appearing for the parties. I have already indicated my prima facie view that neither the 2001 Control Order nor 2003 Control Order render licences granted under the 1968 Control Order invalid."
The said matter was taken to the Court of appeal. The Appellate Court did not interfere with the order passed by the learned single Judge, the relevant portion of the order of the Appellate Court passed in G.A. No.2854 of 2008, A.P.O.T No.329 of 2008, W.P. No.27 of 2008 passed on 3rd September, 2008 is reproduced hereinbelow:-
"It is claimed that under the Public Distribution System (Control) Order, 2001, (hereinafter referred to as 2001 Control Order) only the fair price shop owners are entitled to deal with public distribution system commodities. It is not disputed that Kerosene falls under public distribution system commodities. It has been vehemently argued by the learned Counsel for the appellants that the trial Court has erred in law by not extending the interim order which had been continuing since February, 2008. Learned Counsel has made elaborate submissions in support of the claim that after promulgation of the 2001 Control Order, the West Bengal Kerosene Control Order, 1968 (hereinafter referred to as 1968 Control Order) stood superseded. It is submitted that the 2001 Control Order being Special Notification would override the General Notification i.e. West Bengal 31 Kerosene Control Order, 1968. 2003 Control Order having been issued pursuant to the 2001 Control Order, any provisions of the 2003 Control Order which are inconsistent with the 2001 Control Order cannot be given effect to. It is submitted that the order which has been impugned in the present writ petition has granted certain benefits to the dealers under the West Bengal Public Distribution System (maintenance and Control) Order, 2003, (hereinafter referred to as 2003 Control Order) which are only available to the fair price shop owners under the 2001 Control Order. It is only the fair price shop owners who can distribute essential commodities, as mentioned in the 2001 Control Order to the ration card holders. No dealers under the 2003 Control Order or the 1968 Control Order would be entitled to distribute any item of the public distribution system commodities to the ration card holders."
Against the said judgment and order a special leave petition was preferred being SLP No.22661/2008 in which by an order dated 22nd September, 2008, the Hon'ble Supreme Court dismissed the said SLP, however, a request was made to the learned single Judge to dispose of the main writ petition as early as practicable. We were informed that the petitioners in the said proceeding did not ultimately press the said writ petition.
We have considered the submissions made by the learned Counsel for the parties. At this stage it would not be appropriate to express any final opinion on 32 the question as to whether the promulgation of 2001 Control Order would ipso facto lead to the supersession of the 1968 Control Order. We would also at this interim stage refrain from expressing any opinion on the issue that the 2003 Control Order cannot be supplemental to the Control Order, 2001. In other words, it would not be appropriate for us to hold at this interim stage that the dealer under the 2003 Control Order cannot be permitted to deal in essential commodities, which are sold through the fair price shops. These matters are to be considered by the learned Single Judge after exchange of affidavits.
It, prima facie, appears to us that the embargo that was created under the 2003 Control Order was with regard to fair price shop owners' ineligibility to sell kerosene through such fair price shop unless he holds a licence under the Control Order, 1968. A fair price shop owner is entitled to deal with various ration commodities, namely, food articles, pulses, etc., but would not be permitted to sell kerosene oil through such Public Distribution System through such fair price shop unless he holds the licence under the 1968 Control Order. This is also our respectful understanding of the order dated 2nd August, 2010 passed by the Hon'ble Division Bench presided over by the Chief Justice in F.M.A. No.1441 of 2009.
Having regard to the fact that aforesaid fact and taking into consideration that although it was open for the present appellant to challenge the order dated 22nd September, 2009 which admittedly the appellant did not challenge, it would 33 not to proper at this stage to vacate the ad interim order solely on the ground that the present appellant was not made a party in the writ petition, although, we are of the considered opinion that the writ petitioner should have made him a party. The writ petitioner is directed to add Farid Mondal in W.P. No.11888(W) of 2010. The original as well as the added respondents would file their affidavits within two weeks from date, reply if any, two weeks thereafter. The parties would be at liberty to mention the matter before the appropriate bench immediately upon completion of affidavit. The interim order granted by the learned Single Judge would continue for a period of four months from date. Liberty to either of the parties to apply for extension and/or vacation of the interim order, in the event, the matter is not finally decided within four months from date. This direction is passed having regard to the observation made by the Hon'ble Supreme Court and having regard to the issues involved in the writ petition concerning Public Distribution System. The direction to file affidavits are peremptory.
The appellant urged before us that the order dated 22nd September, 2009 was not given effect to and/or subsequently recalled. We are not much impressed with such submission nor there are enough material on record to show that any such order in fact was recalled by the said respondent No.6. The respondent No.6 in fact passed the said order in implementation of an order of this Hon'ble Court in an earlier proceeding.
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In view of the aforesaid the appeal fails. There shall be, however, no order as to costs.
Photostat certified copy of this judgment, if applied for, be supplied to the parties on usual undertakings.
(Soumen Sen, J.) I agree.
(Pinaki Chandra Ghose, J.)