Calcutta High Court (Appellete Side)
‐ vs ‐ on 23 February, 2015
Author: Debasish Kargupta
Bench: Debasish Kargupta
1
23.02.2015.
rc
W.P. No. 3380(W) of 2015
Tapas Ghosh & Anr.
‐Vs‐
The State of West Bengal & Ors.
Mr. Debabrata Saha Roy
Mr. Pingal Bhattacharjee ..For the petitioner
Mr. Susovan Sengupta
Mr. S. Bandopadhyay ... For the State
This writ application is directed against an order passed by the
respondent no. 4 under his memo no. 2506(6)/DC/FS/S‐24Pgs./14 dated
December 30, 2014. By virtue of the impugned order the respondent no.
4 rejected the application of the petitioners for renewal of fair price shop licence no. 44/MK/MGI/05 fair price shop no. 44 lying and situate in the District - South 24‐Parganas.
For considering the preliminary objection raised on behalf of the State‐Respondents with regard to the maintainability of this writ application the following facts are taken into consideration :‐ The liecence under reference for running the above fair price shop was issued in favour of the two writ petitioners and the respondent no. 6. It was valid upto December, 2013. Two writ petitioners submitted application dated November 26, 2013 (received by the respondent on November 26, 2013) for renewal of the above licence. By virtue of an order dated July 11, 2014 passed by the respondent no. 5 the above application was rejected. The writ petitioners filed an application under Article 226 of the Constitution of India in the matter of Tapas Ghosh & Anr. Vs. State of West Bengal & Ors. challenging the above order passed by the respondent no. 5. The above writ application was disposed of on November 10, 2014 with the following directions :‐ "The petitioners have preferred an appeal against the said order und4er the provisions of 2013 Control Order. Learned counsel appearing for the petitioners has confined the prayer at the time of hearing for early disposal of the appeal.
2In the given context, I dispose of this writ petition with a direction on the appellate authority to take a decision in accordance with law on the appeal of the petitioners following the principles of natural justice within a period of eight weeks from the date of communication of this order. Till the appellate authority decides on the appeal of the petitioners, the second part of the order impugned, which requires the petitioners to show‐cause shall remain stayed as the reason for which the petitioners have been asked to show‐cause and the reason for which the renewal application of the petitioner has been rejected are the same. Thereafter, depending on the dcision of the appellate authority, it shall be open to the concerned officers of the department to proceed with the show‐cause provided there is no further proceeding restraining the authorities to do so. I make it clear that I have not addressed any of the issues raised in the writ petition on merit and it shall be for the appellate authority to adjudicate the issues on merit. The allegations made in the writ petition shall also deemed to have not been admitted.
The writ petition shall stand disposed of in the above terms.
There shall, however, be no order as to costs.
Urgent photostat certified copy of this order be given to the parties expeditiously, if applied for.
Sd/‐ (Anirudda Bose, J)"
The impugned order was passed in compliance of the above order passed in the above writ application.
It is submitted by Mr. Susovan Sengupta, learned senior Government‐Advocate, High Court, Calcutta, appearing on the State‐ Respondents, that in view of the provisions of paragraph 25 of the West Bengal Public Distribution System (Maintenance & Control) Order, 2013 (hereinafter referred to as the "said Order, 2013"). According to Mr. Sengupta, the provisions of paragraph 25 of the said order, 2013 prescribes for preferring an appeal before the Director, Distribution, Procurement and Supply. He is the appellate authority to prefer an appeal against an order passed in an appeal by the District Controller of Food and Supplies. Therefore, the Court sitting in writ jurisdiction is not the appropriate forum to agitate the grievance of the petitioner. 3 It is also submitted by Mr. Sengupta that since there is no allegation of passing the impugned order without jurisdiction in violation of principles of natural justice this writ application is not maintainable.
It is further submitted by Mr. Sengupta that the reliance placed by the petitioner on a judgment in respect of a writ application and a judgment delivered in connection with an appeal arising out of the same involving distinguishable facts and circumstances. It is submitted by Mr. Debabrata Saha Roy, learned counsel appearing on behalf of the petitioner, that since the legal right of the writ petitioner on the basis of the settled principles of law has been interfered with there is no bar and/or impediment to entertain the application under Article 226 of the Constitution of India in this matter. It is further submitted that the alternative remedy as appears from the provision of paragraph 25 of the said order, 2013 does not create any bar and/or impediment to entertain this writ application. I have heard the learned counsel appearing for the respective parties with regard to the aforesaid preliminary objection and I have considered the facts and circumstances involved in this case. Considering the provisions of Article 226 of the Constitution of India I find that an application under Article 226 of the Constitution of India is maintainable on the ground of violation of fundamental right or legal right of a person.
It is settled principles of law that it the discretion of the Court sitting in writ jurisdiction to ascertain whether the Court will exercise its discretionary power to admit an application under Article 226 of the Constitution of India inspite of availability of a statutory forum to prefer an appeal. Normally a Court sitting in writ jurisdiction does not allow a writ petitioner to proceed with the writ application for decision where the matter is to be decided by statutory appellate forum on the basis of the questions of facts and circumstances.4
In a case where the writ application is filed alleging violation of legally enforceable right of the writ petitioner a Court sitting in writ jurisdiction can exercise its discretionary jurisdiction in an appropriate case. Reference may be made to the decision of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors. reported 1998(8)SCC 1 and relevant portions of the above judgment are quoted below:‐ "15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case‐law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decision of the evolutionary era of the constitutional la as they still hold the field."
Considering the issue involved in this writ application I find that the grievance of the petitioners is violation of their legal right for renewal of the licence of fair price shop on the basis of the principles of law settled in a writ application decided on May 13, 2010 in the matter of Sambhunath Agarwal Vs. State of West Bengal & Ors. (In Re:
W.P.No. 1945(W) of 2008) and order of dismissal in an appeal in the matter of Madhusudan Das Vs. Sambhunath Agarwal & Ors. ( In Re :
MAT No. 947 of 2010) arising out of the above writ application.
Therefore, considering the subject‐matter of challenge this Court is of the opinion that this is a fit case to be admitted for adjudication of the issue involved in this writ application on the basis of the settled principles of law in respect of the above issue. Therefore, the preliminary objection is rejected.5
Further hearing of this matter stands adjourned to February 25, 2015.
Let this matter appear in the daily supplementary cause list on February 25, 2015 under the same heading.
( Debasish Kar Gupta, J. )