Calcutta High Court
Shyam Sundar Modak vs State Of West Bengal And Ors. on 10 May, 1999
Equivalent citations: AIR1999CAL129, AIR 2000 CALCUTTA 129, (1999) 2 CAL HN 593 (1999) 3 ICC 546, (1999) 3 ICC 546
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S. N. Bhattacharjee, J.
1. The only point raised in this appeal as to whether the Director, Food and Supplies extended the period for filing of application for grant of licence of wholesale dealer in sugar at Krishnagunj, Dist. Nadia and if so, whether he was competent to do so under the notification issued under the statute.
2. The Sub-Divisional Controller, Food and Supplies Krishnagore issued a notice dated 26-4-94 inviting applications for issuing wholesale levy free Sugar dealers licence in respect of the police stations including Krishnagunj fixing a target date in pursuance whereof the writ petitioner, along with others, applied in form A for grant of said licence for levy free sugar. The respondent Nos. 5 and 6 also applied therefor after expiry of the date fixed in the notification. Subsequently at the request of Nadia Zilla Parishad the date was extended the case respondent No. 5 was recommended by the Hon'ble Minister-in-Charge himself and he was granted licence. The writ petitioner challenged the said order before the ld. trial Judge alleging that the selection was at the behest of the Hon'ble Minister-in-Charge after the time being illegally extended for making the application and prayed for issuing writs setting aside the order of appointment of respondent No. 5 as wholesale dealer of levy free sugar in area at Krishnagunj, -Dist. Nadia.
3. The learned trial Judge observed, "I am, however, unable to accept the contention of the present petitioner that candidature of the respondents No. 5 and 6 should not have been considered at all. It is true as pointed out by the petitioner that they applied beyond the prescribed time, but it appears from the records that the Zilla Parishad by taking various resolutions also resolved that to increase the scope of such applications time should be extended, because of which time for making application was extended although at a very belated stage in the month of December and notices were also issued. More serious, in my view, is the attack of the present petitioner that there has been no proper consideration at all and the respondent No. 5 is sought to be appointed on extraneous consideration.
After considering all aspects of the matter I am constrained to record that recommendation for appointment in favour of the respondent No. 5 has been made certainly on extraneous consideration.
The ld. trial Judge set aside the appointment of the respondent No. 5 and directed the appropriate authority to make the selection and appointment in accordance with the law after considering the respective candidature, the merits and demerits of each of such candidates after recording the reason as to why the candidate selected for appointment is preferred to other candidates. There is no doubt that the Sub-Divisional Controller is the authority to decide such questions".
4. Being aggrieved by this order directing the authorities to consider the cases of all the candidates including those of respondent Nos. 5 and 6, the writ petitioner has preferred this appeal.
5. It has been strenuously argued by the learned counsel for the appellant that the learned trial Judge failed to appreciate that the applications of respondents No. 5 and 6 were recommended by Nadia Zilla Parishad and the District Controller, Food and Supplies, Nadia extended the date up to 31-12-1994 on the request of Zilla Parishad, Nadia and subsequently notified by the Deputy Director, Food and Supply although they have no authority to do so and the Sub-Divisional Controller, F.S., Krishnanagore wrongly acted upon such recommendations. According to him, the order passed by the learned trial Judge directing the authorities to consider the case of respondents No. 5 and 6 is, therefore, illegal and is liable to be set aside.
6. Pursuant to the order dated 1-3-99 passed by this Bench the Official Records were produced before us to enable us to examine whether the last date for filing application was extended by the Director, Food and Supplies.
7. It appears from the official records that the last date for filing application was fixed on 31-5-94 (vide notice dated 26-9-94 of S.D.C. F & S, Krishnanagore). The District Controller Food and Supplies, Nadia by its memo dated 1-12-1994 directed the Sub-Divisional Controller to extend the time of receiving application up to 31-12-1994 consequent upon the request of Zilla Parishad, Nadia. The official record does not show that the Director, Food and Supplies passed any order for extension of time. The Dy. Director accorded post facto approval to the said extension of the date despite the office note that the District Controller Food and Supplies had no power to extend the time and such extension might invite litigations. It further appears from official record that the application of the respondent No. 5 bears no date (space against 'date' vacant) but it was received by officer of the Sub-Divisional Controller, F & S on 22-9-95 and was marked application No. 6/KNJ/LFS/95 dated 22-9-95.
8. It is to be noted that powers to control production, supply, distribution of essential commodities is vested in the Central Government in terms of Section 3 of the Essential Commodities Act, 1995 which is a Central Act. Section 5 of the said Act authorises the Central Government to delegate its power by notified order empowering any officer or authority subordinate to the Central Government or the State Government or such officer or authority subordinate to it as may be specified therein to make orders or issue notifications under Section 3 in relation to such matters and subject to such conditions, if any, as may be specified in the direction. The Central Government issued delegating notification No. GSR 800 dated 9th June, 1978 authorised by which the Governor framed an order called the West Bengal Sugar Dealers Licensing Order, 1980. In that order Part II (j) defines the Licensing Authority as an officer appointed by the Government by a notification in the Official Gazette to exercise the powers and perform the duties of the Licensing Authority under the order in respect of such area as may be specified in such notification.
9. Notification No. 3423-FS/FS/14R-2/ 80, 23rd June, 1980 :-- In exercise of the power conferred by Clause (j) of paragraph 2 of the West Bengal Sugar Dealers Licensing Order, 1980, the governor is pleased hereby to appoint the officers specified in column I of the Table below, to exercise the powers and perform the duties of the licensing au thority In respect of the areas specified in the Corresponding entries in column II of the said Table :
TABLE Officers Areas I II (1) (2)
(a) The controllerof Sugar, Government of West Bengal The areas described in Schedule I to the Calcutta Municipal Act, 1951 (West Bengal Act XXXIII of 1951) as deemed to have been amended under S. 594 of that Act : the part of Hastings North of South edge of Clive Row and Strand Road to the river bank and the area within the limits of the Port of Calcutta as defined by notification under S. 5 of the Indian Ports Act, 1908 (XV of 1908).
(b) Subdivisional Controllers of Food and Supplies.
In their respective jurisdictions except the areas specified (a) above.
10. In F.M.A.T. No. 478 of 1996 (Shyam Sundar Jhawar v. State) the Division Bench of this Court has observed, "The said Government Order 5241-FS dated 19-10-89 in our opinion is illegal and without jurisdiction. It is well-known that a higher authority cannot give any instruction whatsoever to the statutory authority. The Sub-Divisional Controller, Food and Supplies is the sole licensing authority".
11. By the aforesaid circular dated 19-10-89 the Dy. Secretary, Food and Supplies Department of the Government of West Bengal prescribed some procedure regarding issue of new Wholesale Sugar Dealers' Licences in the District requiring the Director, Directorate of District Distribution, Procurement and Supply (hereinafter referred to as the Director, D.D.P. & S.) and all sub-divisional controller of food and supplies to follow the procedure.
12. The question regarding the validity of the circular issued by Director, D.D.P. & S. laying down the procedure for appointment of M.R. distributors and M.R. dealers in rural and urban areas came up for consideration before one of us (S.B. Sinha, J.) in Nilkantha Ghosh v. The State of West Bengal marked as W.P. No. 7034 (W) of 1997, (1999) 1 ICC 719 (Cal).* In that case Khadya-O-Sarabaraha Styayee Samity, before His Lordship, the Director, DDP&S laid down a procedure by a circular for appointment of M. R. distributors and M.R. dealers in respect of both rural and urban areas in terms whereof Khadya-O-Sarabaraha Styayee Samity or the Food and Supply Essential Commodity Standing Committee of the local body as the case may be had been given powers to make an enquiry as regards applicants pursuant to a vacancy declared by the sub-divisional Controller, F & S Department for the purpose of ascertaining the antecedents of the applicants and for verification of the particulars furnished by them. His Lordship after having discussed a long catena of decisions held.
"It is now a wellsettled principle of law that a statutory authority must act within the four-corners of the statute. It is also well settled that an authority when empowered to do a particular thing in a particular manner, must exercise that power in the manner laid down under the statute or not at all. It is further well settled that when a statutory authority exercises a statutory power, he must apply his mind independently and in the event he acts on the basis of an advice or a recommendation made by any authority who has no role to play under the statute, such order would be void. In Bijoy Kr. Santhaliav. State of Bihar, , relying upon or on the basis of a decision of the Madras High Court in Udayappan v. Government of Tamil Nadu, reported in (1983) 1 Lab LJ 170 : (1982 Lab IC NOC 124), I had held that it is well settled that a statutory functionary also cannot pass an order on the basis of recommendation and/or in consultation with an authority who has no role to play under the statute. In Jhikira Howrah Bus Syndicate v. R.T.A. Howrah, reported in (1996) 1 Cal LJ 397, I had again an occasion to consider this aspect of the matter and held :
"There cannot be any doubt whatsoever that the Regional Transport Authority being a statutory and having derived its power under the statute must act within the four corners thereof. It is also a well settled principles of law that a statutory functionary while exercising a jurisdiction under the statute must apply its own mind on the basis of materials on record for the said purpose. It cannot take advise or act on the basis of the recommendations of any other person who has no role to play under the statute."
13. In the instant case the Nadia District Zilla Parishad and also the District Controller, Food and Supplies have no authority under the notification to make any request, issue any direction to the sub-Divisional Controller, F & S regarding any matter concerning the grant of licence to the wholesale traders. The recommendation of Nadia Zilla Parishad in favour of respondent No. 5 or 6 or of any applicant is not worthy of consideration for lack of Jurisdiction. Similar is the case with directions and instructions of Director, Dy. Director of the DDP & S regarding extension of time or any matter whatsoever relating the grant of licence for aforesaid purpose. The licensing authority shall have the exclusive power in dealing with the matter on the basis of materials on record ignoring the recommendations made by any other authority including the Hon'ble that of the M.I.C. It is to be noted from the official record that the Director, DDP&S by its letter No. 18 FMR/17 s-2/96 (KSR/22-1-97) requested the licensing authority, the sub-divisional Controller, F&S, Krishnanagore to issue licence on the basis of available records as no specific order can be passed from his office in regard to the issue of levy free sugar licence at Karimpur in view of the judgment of the Division Bench of this High Court passed in F.M.A.T. No. 478 of 1996 and other cases.
In view of the discussion made above we hold that the order passed by the learned trial Judge under appeal directing the authorities to consider all cases including those of respondent Nos. 5 and 6 suffers from legal infirmity and as such is set aside. The licensing authority will only consider the applications filed within the time on the basis of materials on records and issue licence in accordance with law. The appeal is, therefore, allowed with above-mentioned directions. In the facts and circumstances of the case, there will be no order as to costs.
S. B. Sinha, J.
14. Although I agree with the order proposed to be passed by my learned Brother I would like to add some words of mine.
15. The learned trial Judge, in our opinion, has not acted in accordance with law in directing the Principal Secretary, Department of Food & Supplies to select the candidate to be appointed ultimately by the Sub-Divisional Controller in accordance with law by comparing the merits and demerits of each of the candidates recommended by the Sub-Divisional Controller. Such a direction, in the opinion of this Court, is contrary to the provision of law.
16. It is now a well settled principle of law that this Court in exercise of its jurisdiction under Article 226 of the Constitution of India can issue a writ of or in the nature of Mandamus directing the statutory authority to comply with the provisions of the statute and/or act in terms of the statutory mandate but this Court has no jurisdiction to direct adoption of a hybrid procedure. Normally the Court can only direct the statutory authorities to perform their statutory duties save only in exceptional cases where a discretionary power exists. The Court may exercise such discretion if conditions precedent therefore are fulfilled. Such cases are absolutely exceptional in nature.
17. In State of W.B. v. Nuruddin Mallick the Apex Court declined to entertain a suggestion made at the Bar that the Supreme Court itself may decide the merit of the matter stating :--
"We have no hesitation to decline such a suggestion. The Courts can either direct the statutory authorities, where it is not exercising its discretion, by mandamus to exercise its discretion, or when exercised, to see whether it has been validly exercised. It would be inappropriate for the Court to substitute itself for the statutory authorities to decide the matter."
18. It is, therefore, for the licensing authority to consider the respective cases of the concerned applicants and arrive at an independent findings on the basis of materials brought on record. Furthermore, it is a well settled principle of law in view of the decision of the Supreme Court in Commr. of Police v. Gobordhan Das that even an appellate authority cannot act in place of the licensing authority.
19. So far as entertaining the applications filed by the candidates within the prescribed time is concerned, no exception thereto can be taken. If a person intends to have the benefit of having a licence in terms of the order made under Section 3 of the Essential Commodities Act he has to file such an application within the period prescribed. No other authority for less any authority who had no role to play under the statute can direct extension of time in relation thereto as by reason thereof a discrimination would be made. When an advertisement is issued, the concerned authority must give full effect thereto and any deviation and departure therefrom is forbidden. See R.D. Setty v. International Airport Authority of India .
20. It cannot be said to be a case where a statutory functionary is required to perform within the prescribed time and as such the same would be directory in nature.
21. I have, therefore, no hesitation to hold that the candidates were required to file their respective applications within the time specified therefor.