9911796707
TMI Blog2012 (11) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... Any step taken in violation of the statutory provision, particularly where there is overtaking on the part of the authorities in the decision making hierarchy, cannot be protected as being mere irregularity. It would be impermissible to legitimize an action on the part of an authority in initiating a proceeding which the statute mandates another authority to initiate on the ground that such action would cause no prejudice to the person against whom such action is initiated. Such show cause notice has been issued by DC without having jurisdiction to do so, and no further step ought to be taken in pursuance of the same. - Notices quashed. Regarding intervenor - held that:- business of distribution never involved the intervenor, and he cannot compel the food and supplies department to allow him to act as a licencee - intervenor cannot implement a partnership agreement by making complaint before the food and supplies authorities - District Controller had no jurisdiction to issue such notice. The appropriate authority under the 2003 Control Order however shall be at liberty to institute a proceeding afresh, if such authority is of prima facie opinion that there has been any vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partnership, but this agreement records the names of both AM and MH with that abbreviation, as the second party to this agreement, which abbreviation implies proprietors of Damodar Enterprise. It was qualified further in this agreement that they were carrying on business as M/s Damodar Enterprise . There is no allegation in this proceeding over running of such business till the year 2006. In the years 1988, 1992 and 1994, certain further agreements appear to have been executed concerning composition of Damodar Enterprise. But so far as relationship of the petitioner and MH with the food and supplies department is concerned, no alteration in terms thereof appears to have taken place. 3. In the year 2003, the West Bengal Public Distribution System (Maintenance and Control) Order was promulgated under the provisions of Section 3 of the Essential Commodities Act 1955. By this Control Order, distributorship of this nature was brought within its ambit, specifying the manner of their appointment as also regulation of their operations through a prescribed administrative hierarchy. As regards existing distributors who were operating when this Control Order was promulgated, they were give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment. In this report dated 6 November 2006, he however observed that he made an enquiry into the allegations. His finding on the issue was that the District Magistrate, Burdwan had disposed of the case by appointing Domodar Enterprise, whose partners were Sri Monohar Halder and Sri Abdul Malek as M.R. Distributor at Kejurhati after declaration of vacancy. Subsequently, the shop-cum-godown stood transferred to Polempur. Damodar Enterprise in the meantime did not submit any application for inclusion of any other partner and office of the appropriate authority had not approved the same. It was also indicated in that report in Sk. Ajimuddin was an outsider and unknown to the office of the DC. It was also disclosed in that report that licence of M/s Damodar Enterprise in form A under the 2003 Control Order had been issued afresh upon observing all formalities and legal compliance. 6. Licence of M.R. Distributorship under the 2003 Control Order issued in favour of AM and MH as proprietors of the said firm had initial validity till 31 December 2006. It appears that another complaint was lodged by the intervenor on 5 March 2007 in the same line. In this complaint, a copy of wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jan Das, mainly to place on record an order passed by the respondent no. 3, being the Director, District Distribution Procurement and Supply (DDPS) on 29 May 2009. AM and MH had also made a representation against the notice to show-cause issued on 4 April 2007 before the Appellate Authority, being the Regional Deputy Director. This representation is dated 25 April 2007. The Regional Deputy Director (RDD) in his response addressed to the petitioner and MH jointly, opined that the SDC was the competent authority to issue such notice, and the notice issued by the DC was not valid and proper. This communication was issued on 27 April 2007. Earlier, on 26 April 2007, the same authority i.e. the RDD had in substance rejected the intervenor s application for inclusion of his name in the licence by issuing a memorandum bearing number 95/RDD/F.S./BWN. A substantive order was passed by the Regional Joint Director (RJD), Food and Supplies, Burdwan region in respect of plea of the writ petitioner and MH on 17 November 2008, directing the DC to renew the licence of Damodar Enterprise. The intervenor, Sk. Ajimuddin made a further representation before the DDPS against the direction issued by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trict Controller at Burdwan by misrepresenting himself as the proprietor of M/s. Damodar Enterprise. In this application, main allegation against the writ petitioner is for having filed false information to a public servant as regards status of the firm and for having used expression Deed of Agreement instead of Partnership Deed for describing the Deed of Reconstitution. 12. The main issue on which I have been addressed in this writ petition is whether there was any manipulation by the writ petitioner in obtaining the licence under the 2003 Control Order, by suppressing the identity of the intervenor and Wahuda Rasul as partners of Damodar Enterprise. The notice to show cause forms the primary cause of action of this proceeding, in which allegation has been made that the renewal application was filed without disclosing the names of all the partners on record and the petitioner surreptitiously managed to obtain license from the DC defeating the legitimate right of Sk. Ajimuddin, the intervenor in this proceeding, to be permitted to carry on business along with the other partners. The specific statutory violation the petitioner is alleged to have committed, it was pointed out i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of the petitioner that the intervenor cannot seek implementation of a partnership agreement through the food and supplies department, and that too, without raising the issue for more than a decade. According to the petitioner, as per the order of the DC issued on 6 November 2006, question of legality of appointment of the petitioner had attained finality and since this order was never challenged, it was no more open to the department to initiate proceeding afresh on fresh complaint made by the intervenor. 15. On behalf of the State respondents, Mr. Milan Bhattacharya, learned counsel argued that writ petition was premature, and no legal right of the petitioner had been prejudiced or adversely affected by mere issue of notice to show cause. On the aspect of the jurisdiction of the DC to issue such notice, his justification is that such jurisdiction is derived from a memorandum dated 27 October 2005 bearing No. 893 FMR/11/S-5/2004 issued by the DDPS in terms of Clause 23 of the 2003 Order. As per the memorandum, all the District Controllers have been authorised to effect renewal of licence of existing distributors. This memorandum specifically stipulates:- However, the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enewed in the firm name, and he had no cause for complaint, as he was a partner of the firm. On behalf of the intervenor, it has been further submitted that the writ petitioner had obtained the licence under the 2003 Control Order surreptitiously in his own name along with that of MH without disclosing the names of all the partners and for this purpose it was well within the jurisdiction of the DC to issue the notice to show cause. 20. I shall first deal with the question of maintainability of the writ petition as it has been contended by the state respondents as well as the intervenor that a writ petition would not lie against a notice to show cause, as by a notice to show cause, no legal right of the recipient is infringed. On this point, on behalf of the state respondents, the authorities relied upon are a decision of the Supreme Court in the case of Special Director Vs. Mohammed Ghulam Ghouse reported in AIR 2004 SC 1467 and a Division Bench judgment of this Court in the case of Prabhat Kumar Chakraborty Vs. Union of India (2010) (1) CHN (Cal) 619. Learned counsel for the intervenor has referred to a judgment of the Supreme Court in the case of Trilok Singh and Co. Vs. Dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is accorded to the writ petitioner even at the threshold by the interim protection, granted. In the case of Prabhat Kumar Chakraborty (supra), the controversy was over a departmental proceeding initiated by a notice to show cause, and the same principle of law was reiterated by a Division Bench of this Court:- It has been held by the Apex Court that a mere show cause or chargesheet does not give rise to any cause of action because it does not amount to any adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction. 21. Authorities are uniform on the point that in the event a notice to show cause is issued by an authority not having jurisdiction to do so, then such notice can be challenged in a writ proceeding. This principle has been followed by the Supreme court in the case of Chief of Army Staff Vs. Major Dharam Pal Kukrety [1985(1) SLR 658]. The petitioner before me has raised this vey issue, questioning the jurisdiction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f DC, and was not maintainable as the 2003 Control Order did not vest in DC any power to review his own decision. In the case of R.R. Verma (supra), power of the Central Government to review their decision passed under Rule 3 of the All India Services (Conditions of Service-Residuary Matters) Rules was examined. It was held in this judgment that the principle of law that power to review must be specifically conferred on an authority for its exercise did not extend to decisions purely administrative in nature, but applied to a quasi-judicial authority. In the case of K. R. Deb Vs. Collector, Central Excise, Shillong (supra) dispute arose out of a departmental enquiry. In a disciplinary proceeding against a central excise official, the enquiry officer found the charge against him to be not proved. The departmental authority directed inquiry to be conducted afresh against him by another officer, not being satisfied with the report of the enquiry. In the second enquiry, charge against the delinquent officer was found to have been proved. Considering the relevant provisions of the Central Civil Services (Classification, Control and Appeal) Rules, the Supreme Court found that there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of condition of licence by introducing any partner to the business of distributorship was not addressed to in that memorandum. The subject of the proceeding under challenge in this writ petition is non-disclosure of induction of new partners by reconstitution of the firm. This question was not examined earlier. I do not accept contention of the intevenor that the memorandum dated 6 November 2006 was a mere interdepartmental circular. The ratio of the decision of the Supreme Court in the case of Vartak Labour Union (supra) is not directly applicable in this proceeding. But in my opinion, the earlier enquiry was not properly conducted, and did not address the issue of reconstitution of the firm, so as to foreclose the possibility of any further investigation on the question as to whether unauthorized persons were taking part in the business of distributorship being carried on by the petitioner and MH. That issue was not examined, as it appears from the materials disclosed before me. It was also submitted on behalf of the petitioner that the decision of DC reflected in the memorandum dated 6 November 2006 had attained finality, not being challenged by the intervenor. But again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Sub- Divisional Controller shall forward the said explanation with the remarks to the District Controller, Department of Food and Supplies, within 16 days from the date of receipt of such explanation. The District Controller, Department of Food and Supplies, after giving an opportunity of hearing to the distributor shall dispose of the proceedings within one month from the date of receipt of communication from the Sub-Divisional Controller, Department of Food and Supplies, The District Controller, Department of Food and Supplies, in course of disposal of the proceedings, may terminate the license and appointment issued to the distributor or may forfeit the security deposited by the distributor or may reduce the number of dealer attached with the said distributor. In the event of termination of license, the security deposit shall stand automatically forfeited to the state. 26. On behalf of the state respondents, it has been contended that the notice to show cause was issued in discharge of power by the District Controller vested in him under Clause 23 of the Control Order, dealing with the question of renewal. Clause 23 of the Control Order stipulates:- 23. Appointment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he distributor shall be required to furnish a security deposit of Rs.10,000/- in the form of National Savings Certificate, Krishan Vikash Patra etc. pledged in favor of the Governor of West Bengal. (iv) While appointing a distributor, the concerned authority shall take into consideration the volume of business, number of Dealers to be tagged with the distributor and other factors as may be required to be examined in the interest of Public Distribution System. In exercise of power under the aforesaid provision of the Control Order, by a Memorandum bearing no. 893 FMR/11 S-5/2004 dated 27 October 2005, the District Controllers were authorized to effect renewal of licence of the distributors. I have referred to this memorandum in earlier part of this judgment. 27. Renewal, under normal circumstances constitutes ministerial act which automatically takes effect on furnishing of appropriate application accompanied by prescribed fees, in the absence of any further requirement for enquiry specified in the statute. In Clause 23 of the Control Order, no such additional requirement has been prescribed. The reason for which renewal has been held up in the case of petitioner, as it trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re deciding the issue finally, upon giving opportunity of hearing to the distributor. This is the prescription of the Control Order. Deviation from this course ex-facie would be without the authority of law, being contrary to the provisions of the statue. Any step taken in violation of the statutory provision, particularly where there is overtaking on the part of the authorities in the decision making hierarchy, cannot be protected as being mere irregularity. In my opinion, it would be impermissible to legitimize an action on the part of an authority in initiating a proceeding which the statute mandates another authority to initiate on the ground that such action would cause no prejudice to the person against whom such action is initiated. Such violation of statute would be implicitly prejudicial to the petitioner, as every citizen of this country is entitled to be dealt with in accordance with law before being subjected to any enquiry which would entail penal measure as a consequence thereof. I accordingly find that such show cause notice has been issued by DC without having jurisdiction to do so, and no further step ought to be taken in pursuance of the same. 30. Two other poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r cannot implement a partnership agreement by making complaint before the food and supplies authorities. In the event it is found that Sk. Ajimuddin was brought into the distributorship business of essential commodities, there would be no question of legitimizing his entry by endorsing his name on the licence. The authorities would have to decide then as to whether the licence shall be retained or not. To that extent, claim of the intervenor cannot be entertained. But if through his complaint, certain irregularities come to the notice of the authorities, then it would be permissible to initiate an enquiry in the manner prescribed in the Control Order. 33. In these circumstances, I quash the impugned notices dated 4 and 20 April 2007, copies of which have been marked P5 and P7 to the writ petition as I am of opinion that the District Controller had no jurisdiction to issue such notice. The appropriate authority under the 2003 Control Order however shall be at liberty to institute a proceeding afresh, if such authority is of prima facie opinion that there has been any violation of the provisions of the Control Order or any condition stipulated therein. 34. As regards the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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