Calcutta High Court
State Of West Bengal & Ors vs M/S. Raiganj Flour Mill Pvt. Ltd on 19 May, 2011
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELALTE JURISDICTION
IN AN APPEAL ARISING OUT OF
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
A.P.O. No. 47 of 2011
A.P.O.T. No. 592 of 2010
W.P. No. 1198 of 2010
STATE OF WEST BENGAL & ORS.
VS.
M/S. RAIGANJ FLOUR MILL PVT. LTD.
BEFORE:
The Hon'ble Justice PINAKI CHANDRA GHOSE
A N D
The Hon'ble Justice SHUKLA KABIR (SINHA)
For Appellant : Mr. Milan Ch. Bhattacharya, Adv.
Mr. Krishna Nandan Mukherjee, Adv.
Mr. Upendra Roy, Advocate
For Respondent : Mr. Saktinath Mukherjee, Sr. Adv.
Mr. Bikash Ranjan Bhattacharya, Sr. Adv.
Mr. Debabrate Saha Roy, Adv.
Mr. Probal Mukherjee, Adv.
Mr. Rajat Datta, Adv.
Mr. N. Mishrar, Adv.
Heard on : 01.02.2011, 03.02.2011and 04.02.2011 Judgment on : 19.05.2011
PINAKI CHANDRA GHOSE, J.: This appeal is directed against a judgment and/or order dated 4th October, 2010 passed by the Hon'ble Single Judge in W.P. No. 1198 of 2010 whereby the Hon'ble Single Judge at the ad-interim stage was pleased to grant an order of injunction restraining the respondent from withholding the floor mill of the petitioner after giving liberty to the respondent to 2 proceed with the investigation/enquiry initiated pursuant to the show-cause notice issued by the respondent/appellant herein dated 25th August, 2010.
The facts of the case briefly are as follows :
The writ petitioner/respondent owns and operates a flour mill at Uttar Dinajpur. The mill of the petitioner was selected for sub-allocation of below poverty line wheat per month for conversion into fortified atta for packing the same into 750 gm packets.
An agreement was executed by the State of West Bengal represented by the District Controller of Food and Supplies, Uttar Dinajpur and the petitioner No. 1/respondent No. 1 herein. The facts revealed that a show-cause notice dated 25th August, 2010 was issued to the petitioner alleging that the petitioner had been supplying hand packed atta instead of packing done by automatic or semi automatic packaging machines in utter violation of the departmental guideline. The writ petitioner/respondent herein gave a detailed reply to the show-cause notice by a letter dated 30th August, 2010.
It is pointed out that the mills own eight automatic packing machines of 'Allpack Industries' which had been purchased by the writ petitioner as per the conditions set by the Food Department. All the automatic packing machines were in working condition.3
It is further stated that in addition to the said eight packing machines the writ petitioner's company owned four semi automatic packing machines which had been purchased from R.M. Industrial Corporation which were also in running and operating condition.
In these circumstances, the interim order was passed by the Hon'ble Single Judge.
Being aggrieved and dissatisfied with the said order the appeal has been filed by the State Authorities.
Mr. Milan Ch. Bhattacharya, learned Advocate appearing on behalf of the appellant submitted that the show-cause notice was issued on the basis of the Government guidelines dated 10th August, 2007 in terms of the agreement as per clause 5 of the said Government order. Mr. Bhattacharya drew our attention in particular the 3(1) which has been specifically stated that "....But no account are manual packing machines to be considered as it would be difficult to monitor wastage, short weighment, contamination and ensure proper sealing."
He further drew our attention to clauses 13 and 15 which reads as follows :4
"Clause13. Unlifted fortified atta remaining with any selected flour mill(s)/chakki mill(s) in a particular month will never be disposed of in open market. The stock which could not be distributed within the month shall be carried forward to the next month and adjusted against the next month's allotment of wheat."
Clause15. Distribution of fortified atta will be through PDS only and as per provision of the WB PDS (M&C) order, 2003 (as amended) and any violation of the provisions of the order will result in imposition of Penalty under EC Act, 1955 (as amended)."
Mr. Bhattacharya further submitted that on the basis of an enquiry report dated 24th June, 2010 submitted by the Assistant District Controller and the concerned Circle Inspector wherein it has been stated that the flour mill was running in respect of open marketing production and stop production in respect of BPL fortified atta. It is further stated that on the basis of such enquiry a memo dated 9th August, 2010 issued by the District Controller to the Director of the said Directorate. The District Controller, Uttar Dinajpur was directed to take steps in the matter and further directed to issue show-cause notice to the mill and to suspend the next quota for violation of the departmental guidelines. On the basis of the report filed by the District Controller and after proper enquiry was made and after analyzing the samples collected from the Raiganj Flour Mill and from the other mills of the district. An analytical report was received which disclosed that the sample packets from Raiganj Flour Mill manual packaging packet was collected and observed moisture to the tune of 14.5%, total ash 1.5%, gluten 8.3%, granularity test was not passed. The verification test was not up to 5 the mark. The samples of 95% fortified atta bearing Lab Sl. No. 899 does not conform to IS:1155-168.
Mr. Bhattacharya further submitted that by a notice dated 31st August, 2010 the District Controller informed the mill to be present in the personal hearing on 29th September, 2010 but the writ petitioner did not appear. He further pointed out that the writ petitioner tried to rely upon the reports of the samplers which were collected. Those samples were collected by samplers but the analysis which was done by the Chemist and Assistant Director of Quality Control on 26th August, 2010 on the basis of the samples collected by the authority from the mill on 24th June, 2010.
Mr. Bhattacharya further submitted that after the order of the Division Bench on 21st December, 2010 the District Controller issued a notice dated 31st December, 2010 and the said notice was also replied by the writ petitioner on 17th January, 2011. In the said reply the authenticity was question by the writ petitioner.
Mr. Bhattacharya further pointed out that the Quality Control report was genuine one. The samples were sent on 25th August, 2010 by messenger and reached office of the Quality Control on 26th August, 2010. On 26th August, 2010, Quality Control concluded the test and submitted its report. Any Inspector who certified about the quality of the fortified atta is not competent to make such 6 certification. Such certification according to him is exclusive domain of the Quality Control Authority.
He further pointed out that no machine made pouch were found on the day of inspection on 24th June, 2010. The mere notings on the inspection books cannot be a safeguard on the part of the writ petitioner to cover up the misdeeds as evident from the report dated 24th June, 2010. The mill was not appointed under any statutory Control Order. The power of suspension was retained by the respondents. He further submitted that enquiry can be completed as early as possible.
He further submitted that there are various dissimilarities in the report covered in the inspection book and final inspection report submitted before the District Controller. The entire writ petition according to Mr. Bhattacharya is founded upon an agreement dated 7th March, 2008. Under the said agreement it has been specifically stated that the mill should be adequately equipped with essential machinery as prescribed in the guidelines and if the mills fails to observe any term of the agreement the decision of the District Controller, Food and Supplies shall be binding as to the contingence of the scheme or any penalty to be imposed upon and the agreement shall automatically terminated, if it is decided by the District Controller.
7
In the instant case, the District Controller stopped supply during the show- cause proceedings. The show cause notice dated 25th August, 2010 has been supplemented by a notice dated 31st December, 2010. The primary cooperative societies had made the complaint against the mill with regard to the quality is fortified by the entries of the delivery register in terms of the writ petitioner, where it has been written by the said cooperative society that the supplied commodities are not maintaining good quality all the times. The Chief Inspector held inspection on 24th June, 2010 and found that flour mill was running in respect of open marketing production and stopped production in respect of BPL fortified atta. The automatic stitching machine was lying as a defunct position inside the mill go-down.
Mr. Bhattacharya further submitted that by the interim order the Hon'ble Trial Court verbally allowed the writ petition. He further submitted that the agreement dated 7th March, 2008 is not a statutory agreement. It is not under any statutory control order. It is an agreement on the basis of the scheme of the Government, therefore, it has not statutory force for violation of any terms of the said agreement if any. Therefore, it is submitted that the writ court is not the proper forum. The supply is made on the basis of allotment issued by the District Controller. The supply for the month of August, 2010 was made in excess. Next allotment for the month of September, 2010 was not made and it is within the domain of the District Controller to continue the scheme or to impose 8 any penalty and the agreement can be automatically terminated, if so decided by the District Controller.
He contended that the adverse view which has been expressed by the Hon'ble Single Judge without giving a right to file an affidavit cannot be accepted. He further submitted that the writ petition is based upon disputed question of fact. The writ petitioner has not been able to show what statutory right, if any of the writ petitioners has been affected.
In these circumstances, he submitted that the writ petition is not maintainable.
On the contrary, Mr. Saktinath Mukherjee, learned Senior Advocate appearing on behalf of the writ petitioner submitted that at this stage the Court should not interfere with the order which is passed by the Hon'ble Single Judge at an ad-interim stage. He further submitted that by virtue of stoppage of supply the appellant in fact stopped the business of the writ petitioner. The writ petitioner on several time requested the state authorities to issue their allotment so that distribution of fortified atta did not suspend.
He further drew our attention to the show cause notice issued by the District Controller wherefrom it would be evident that the District Controller relying on a report of an enquiry the said show cause notice was issued. According to Mr. Mukherjee the said notice was duly replied on 30th August, 9 2010. From the said reply he further submitted that the writ petitioner asked a copy of the enquiry report which was the foundation of the issuance of the said show cause notice.
Mr. Mukherjee further drew our attention to a letter addressed to the Director of DDP&S by the District Controller, Uttar Dinagjpur and he drew our attention to the hand writing portion where it has been stated that "report shows that Raiganj Flour Mills Pvt. Ltd. is supplying hand packet atta in stead of automatic or semi-automatic packaging machine, which is mandatory as per the departmental guideline and in terms of agreement" and in view of such report show-cause notice was issued.
Mr. Mukherjee drew our attention to the analytical report of two samples drawn from the Raiganj Flour Mill Pvt. Ltd. and other from Dalkhola Flour Mill (P) Ltd. and drew our attention that the source of receipt has not been mentioned and he submitted that there are no full particulars in such report.
Mr. Mukherjee relied upon the following decisions :-
1. 2000 (2) CHN, Page 856 (Jitesh Pandey Vs. Smt. Urmilata Sinha & Ors.);
2. AIR 1987 Calcutta, Page 208 (Bimal Kumar Ghosh & Anr. Vs. Saikat Sarkar) 10 Relying on the above mentioned decisions he submitted that there cannot be any stoppage of supply in the given facts.
Mr. Mukherjee further relied upon the decisions of Mahendra Singh Gill Vs. Chief Election Commissioner reported in AIR 1978 SC 851 and submitted that when a statutory functionary makes an order based on certain grounds, validity must be judged on the basis of the reasons so mentioned and cannot be supplemented by fresh reasons. Therefore, according to him the show cause notice which has been issued cannot be supplemented.
Mr. Mukherjee further relied upon the decisions of Mahavir Auto Vs. IOC reported in AIR 1990 SC page 867 and submitted that the Supreme Court after deciding the nature of transaction held that in the field of fairness and considering the long period and the nature of dealing between the parties although there is no contract between the parties the Court can direct that the existing arrangement amounts to a contract by which the distributorship was continued without any formal contract and further the new policy of the Government introduced in December 1982 would not cover the appellant and as such the appellant should continue. Therefore, he submitted that even without any contract the Supreme Court passed an order directing that existing arrangement can be treated as an agreement and the Court directed to continue with the said arrangement.
11
He also relied upon the decisions of AIR 1979 SC 1628 (Ramana Dayaram Shetty Vs. The International Airport Authority of India & Ors. and submitted that in the said decision the Supreme Court held that the State has the right to trade. The State has the duty to observe equality. An ordinary individual can choose not to deal with any person. The Government cannot choose to exclude persons by discrimination. The order of black-listing has the effect of depriving black-listing a person of equality of opportunity in the matter of public contract. Therefore, he submitted that the action on the part of the respondent authority in suspending the supply is discriminatory and a result of arbitrary action before finalizing the issue.
He further relied upon the decision reported in 2006 (5) SCC Page 282 (Seema Arshad Zaheer and Ors. Vs. Municipal Corpn. of Greater Mumbai & Ors.); 2009 (1) SCC Page 553 and F SCC Page 514 and submitted that the Court will not allow the order of suspension of supply at this stage.
In reply Mr. Bhattacharyya submitted that the principle laid down in the decision cited by Mr. Mukherjee cannot be questioned. But according to him the said decisions have no application in the facts and circumstances of this case. He relied upon the decision of Metro Marins Vs. Bonus Watch Co. (P) Ltd. reported in 2004 (7) SCC Page 478 where the Court held as follows:- 12
"Para 9: Having considered the arguments of the learned counsel for the parties and having perused the documents produced, we are satisfied that the impugned order of the appellate court cannot be sustained either on facts of in law. As noticed by this Court, in the case of Borab Caswasji Warden v. Coomi Sorab Warden it has been held that an interim mandatory injunction can be granted only in exceptional cases coming within the exceptions noticed in the said judgment. In our opinion, the case of the respondent herein does not come under any one of those exceptions and even on facts it is not such a case which calls for the issuance of an interim mandatory injunction directing the possession being handed over to the respondent. As observed by the learned Single Judge the issue whether the plaintiff is entitled to possession is yet to be decided in the trial court and granting of any interim order directing handing over of possession would only mean decreeing the suit even before trial. Once the possession of the appellant either directly or through his agent (caretaker) is admitted then the fact that the appellant is not using the said property for commercial purpose or not using the same for any beneficial purpose or the appellant has to pay huge amount by way of damages in the event of he losing the case or the fact that the litigation between the parties is luxury litigation are all facts which are irrelevant for changing the status quo in regard to possession during the pendency of the suit."
In our considered opinion, when the show cause notice was served upon the writ petitioner and the steps have been taken in the matter and which are on record we find that the State authorities on the allegation that instead of packing done by the automatic or semi-automatic machine, the writ petitioner has been supplying hand packed atta issued the said order. The allegation which has been made by the State authority that non-compliance of the formalities for the 13 preparation of atta in terms of the guideline framed by the Government would attract suspension of supply until the matter is enquired by the authorities and decided after giving a chance to the appellant of hearing. Therefore, the issue is that whether the writ petitioner supplied the hand packed atta violating the norms as prescribed by the authority? The said question can be decided only after the affidavits are filed before the Trial Court. We also find in the given facts the principles laid down in the decisions cited before us by Mr. Mukherjee can not be a help to his client.
We have noticed in Jitesh Pandey (Supra) where the facts of the case was that a suit was filed by the petitioner for declaration that he was a monthly tenant for a particular premises as also for a permanent injunction restraining the defendant opposite party from disturbing his peaceful possession. An application for temporary injunction was also filed praying for restraining the opposite parties from interfering with the possession of the petitioner and his family members.
The Trial Court issued notice on the defendant opposite parties to show- cause against grant of the prayer and passed an interim order on the parties directing maintenance of status quo. The opposite parties did not show-cause as directed. They also did not prefer any application under Order 39 Rule 4 CPC. Instead these preferred a Misc. Appeal before the District Judge. The appeal was accordingly heard and disposed of setting aside the order passed by the Trial 14 Court. Hence, the revision application was filed before the High Court and the Court held that three remedies are available when a person is aggrieved by an ad interim order of temporary injunction. The said decision in our considered opinion cannot be a help to Mr. Mukherjee's client.
We have also noticed in Bimal Kumar Ghosh (Supra) where in the said revision application the Court decided that the application under Section 20 of the Arbitration Act though has to be registered as a suit as provided in Section 20(2) of the Arbitration Act 1940 is not a suit in the fullest sense of the term so that the provisions of the Civil Procedure Code in respect of disposal of a suit on a preliminary point only after framing of issues regarding maintainability are not attracted. Therefore, it appears to us that in the facts and circumstances of this case the said principle which has been laid down by the Court cannot be a help to Mr. Mukherjee's client.
In Indore Development Authority (Supra) where the Supreme Court held that interim order should not be such as to amend at the interim stage. We have noticed in this matter that the interim order which has been passed by the Court giving a mandatory direction in favour of the writ petitioner in this matter would show that such mandatory order is nothing but if allowed to continue will tantamount to allow the writ petition.
15
We have further noticed in Raja Khan Vs. Uttar Pradesh Sunni Central Waqf Board and Anr. reported in (2011) 2 SCC 741 where the Supreme Court held that it is settled that by an interim order the final relief should not be granted. The said opinion also expressed in U.P. Junior Doctors' Action Committee Vs. Dr. B. Sheetal Nandwani 1992 Supplementary (1) SCC 680 and State of U.P Vs. Ram Sukhi Devi reported in 2005 (9) SCC 733.
The Supreme Court in Raja Khan (Supra) has duly noted the said decisions and expressed the same opinion.
In our opinion the case of the writ petitioner herein does not come under the exceptions which has been noticed by the Supreme Court in Metro Marins's Case (Supra) relying on Borab Caswasji Warden v. Coomi Sorab Warden. Therefore, it is not such a case where on exceptional ground an ad-interim mandatory injunction order directing the respondent authority to supply the BPL atta to the writ petitioner can be granted before the conclusion of the enquiry in terms of the show cause notice.
For the foregoing reasons we are of the considered opinion that Hon'ble Single Judge by granting such mandatory order effecting the supply to the writ petitioner virtually allows the writ petition in favour of the writ petitioner. 16
Accordingly we only vacate the said ad-interim order of injunction passed by the Hon'ble Single Judge and we request the Hon'ble Single Judge to hear out the writ petition at an early date in accordance with is Lordship's convenience.
For the reasons stated hereinabove this appeal is disposed of. Photostat certified copy of this judgment, if applied for, be supplied to the parties.
(PINAKI CHANDRA GHOSE, J.) I agree.
(SHUKLA KABIR (SINHA), J.)